i      ii 


mmi 


,...,. 


Ilii 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


STAPEIXS    AND    SE^VEXJL 


STAPEULS    APsTD    SEWOELJ. 


SELECT  CASES 

AND 

OTHER  AUTHORITIES 

ON  THE  LAW  OF 

PROPERTY 


BY 

EDWARD   H.  WARREN 

Story  Professor  of  Law  in  Harvard  University 


LANGDELL  HALL,  CAMBRIDGE 
PUBLISHED    BY   THE    EDITOR 

1919 


CePyRIGHT,   1915,    BY  EDWARD  H.  WA'IRFN 


k 

u. 


PREFACE. 

The  professors  in  the  Harvard  Law  School  who  conduct  the 
courses  given  to  tirst-year  students  have,  after  conference,  decided 
to  make  material  changes  in  most  of  these  courses.  A  statement 
concerning  this  will  be  found  in  the  report  of  Dean  Thayer  for  the 
year  1913-1914. 

These  changes  made  it  desirable  that  several  new  case  books  be 

prepared.    This  book  is  one  of  such  new  case  books.     It  is  intended 

for  use  in  the  course  on  property  (both  personal  property  and  real 

property)  given  to  first-year  students. 

E.  H.  W. 

Langdell  Hall,  Cambridge, 
January,  1915. 


.795345 


TABLE   OF  CONTENTS. 


BOOK  I. 

POSSESSION. 
CHAPTER  I. 

The  Nature  of  Possession: 
Section  1.  Taking  Possession  of  Cliattels: 

A.  Tlie  Power  to  Control 1 

B.  The  Intent  to  Control 27 

2.  Taking  Possession  of  Land 41 

3.  Possession  Predicated  upon  Ownership 51 

4.  Separation  of  the  Custody  or  Use  from  the  Possession      .     55 

CHAPTER  II. 

Rights  based  upon  Possession: 
Section  1.  Rights  of  a  Person  who  has  Possession  by  reason  of  a 

Tenancy,  Bailment,  or  Lawful  Seizure 71 

2.  Rights  of  a  Finder 82 

3.  Rights  of  a  Mere  Possessor 106 

BOOK  II. 

SOME  METHODS   OF  ACQUIRING  TITLE  TO 
CHATTELS. 

CHAPTER  I. 
A  Bona  Fide  Purchase 123 

CHAPTER  II. 
A  Purchase  at  a  Sale  in  Judicial  Proceedings      .     .     .130 

CHAPTER  III. 
Statutes  of  Limitations 134 

CHAPTER  IV. 
Accession 149 


VI  TABLE    OF    CONTENTS. 

CHAPTER  V. 
Tortious  Confusion 169 

CHAPTER  VI. 
Satisfaction  of  Judgment 180 

CHAPTER  VII. 
Gifts  Inter  Vivos 198 

CHAPTER  VIII. 
Distinction  between  a  Sale  and  a  Bailment     .    .    .    .215 

BOOK  III. 

LIENS  AND  PLEDGES. 

CHAPTER  I. 

Acquisition  and  Enforcement: 

A.  Specific  Liens       234 

B.  General  Liens 253 

C.  Liens  on  Chattels  Delivered  Without  the  Authority  of  the  Owner  260 

D.  Pledges       283 

CHAPTER  II.      . 

Loss  by  Surrender  of  Possession 285 

CHAPTER  III. 
Assignability       299 

BOOK  IV. 
CONVERSION. 

CHAPTER  I. 

Acts  constituting  a  Conversion: 
Section  1.  Interfering  with  the  Plaintiff's  Possession  or  Use  of  the 
Chattel ■.     .     .     . 

A.  Taking  the  Chattel  out  of  the  Plaintiff's  Possession  .   309 

B.  Obtaining  the  Chattel  from  the  Plaintiff  by  Fraud  .     .    316 

C.  Leaving  the  Plaintiff  in  Possession,  but  Restraining 

his  Use  of  the  Chattel 317 

2.  Withholding  the  Chattel  from  the  Plaintiff      ....  324 


TABLE    OF    CONTENTS.  Vll 

Section  3.  Altering  the  Condition  of  the  Chattel 345 

4.  Disposing  of  the  Chattel : 

A.  Sale,  or  Pledge,  by  a  Bailee 349 

B.  Misdelivery  by  a  Bailee 379 

C.  Delivery,  by  a  Person  having  No  Right  in  the  Chat- 

tel, to  a  Third  Person 386 

D.  Riddance  of  the  Possession 432 

5.  Using  the  Chattel 433 

6.  Possessing  the  Chattel  under  a  Claim  of  Right   .     .     .441 

CHAPTER  II. 
Right  of  a  Bailor  to  sue  for  a  Conversion  by  a  Stranger  448 

CHAPTER   III. 

Right  of  the  Converter  to  return  the  Chattel  in  Miti- 
gation OF  Damages 454 

BOOK  V. 

INTRODUCTION  TO  THE  LAW  OF 
CONVEYANCING 

CHAPTER  I. 
'?^nure 459 

CIL\PTER  11. 

Estates  or  Tenancies: 

A.  In  Fee  Simple 467 

B.  In  Fee  Tail 470 

C.  For  Life 472 

D.  For  Years       475 

E.  From  Year  to  Year 476 

F.  At  Will 476 

G.  At  Sufferance 476 

CHAPTER  HI. 
Joint  Tenants,  Parceners,  and  Tenants  in  Common     .  478 

CHAPTER  IV. 

Reversions,  Rights  of  Entry  for  Condition  broken. 
Vested  and  Contingent  Remainders.  Herein  of  the 
Rule  in  Shelley's  Case 487 


Vin  TABLE    OF    CONTENTS. 

CHAPTER  V. 
Seisin  and  Disseisin 5Ci 

CHAPTER  VI. 

Common  Law  Methods  of  Creating,  or  Transferring, 
Estates .     .  510 

CHAPTER  VII. 
Rents 516 

CHAPTER  VIII. 

The  Statute  of  Uses 
v'^ECTiON  1.  Effect  of  the  Statute  upon  the  Methods  of  Creating,  or 

Transferring,  Estates 524 

2.  Effect  of  the  Statute  upon  the  Limitation  of  Future 

Interests 539 

3.  Unexecuted  Uses 541 

BOOK   VL 

RIGHTS   INCIDENT   TO   THE   OWNERSHIP  OF 
LAND,   OR  ESTATES  THEREIN. 

CHAPTER  I. 
The  Land  Itself 548 

CHAPTER  II. 
Air 57r 

CHAPTER  III. 
Water 591 

CHAPTER  IV. 

Fixtures 

Section  1.  Incorporation  of  Chattels  into  Realty 633 

2.  Reconversion  of  Fixtures  into  Chattels 674 

CHAPTER  V. 
Emblements 700 

CHAPTER  VI. 
Waste 715 


TABLE    OF    CONTENTS.  IX 

BOOK    VII. 

PROFITS,   EASEMENTS,   LICENSES,  AND   COVENANTS 
RUNNING   WITH   THE  LAND. 

CHAPTER  I. 
Profits 751 

CHAPTER  n. 
Easements 757 

CHAPTER  III. 
Licenses ?88 

CHAPTER  IV. 

Covenants  Running  with  the  Land: 

Section  1.  Where  there  is  Tenure 810 

2.  Where  there  is  No  Tenure     ....    o    o    ....  833 


TABLE   OF   CASES. 


Acton  V.  Blundell 623 

Adams  v.  Mizell 443 

Alexander  v.  Southey 325 

Allen  V.  Smith 2S8 

Ames  V.  Palmer 451 

Anderson  v.  Gouldberg    ....  120 

Anonymous        64 

Armory  v.  Delamirie 82 

Arnold  v.  Fee 774 

.\stbury,  ex  parte 643 

Atchison  v.  Peterson 005 

Austerberry  v.  Oldham  ....  837 
Austin  V.  Hudson  River  R.R.  Co.  533 
Ayer  v.  Ritter 545 

Bails  V.  Davis 500 

Bakeman  v.  Talbot 784 

Baldwin  v.  Cole 324 

Bank  v.  Wolf 671 

Barker  v.  Bates 93 

Barkley  v.  Wilcox 618 

Barnett  v.  Brandao 254 

Bennett  v.  Morris 498 

Be  van  v.  Waters 235 

Bewick  v.  Whitfield 749 

Bickford  v.  Mattocks  ....  203 
Birmingham  v.  Allen        ....  503 

Blake  v.  Sanderson 813 

Bloss  V.  Holman 53 

Boardman  v.  Sill 335 

Boatman  v.  Lasley 757 

Boland  v.  McKowen 481 

Bould  V.  Wynston 531 

Brackett  v.  Goddard 701 

Bridges  v.  Hawkesworth  ...  89 
Briasmead  v.  Harrison     ....  180 

Bristol  V.  Burt 320 

British  Empire  Shipping  Co.,  Lim- 
ited V.  Somes 219 

Broadwood  v.  Granara     ....  262 

Brook,  ex  parte       687 

Brumagim  v.  Bradshaw   .     .     .     .41 

Bryan  v.  Wcems 145 

Bryant  v.  Wardell 438 

Bryant  v.  Ware 177 

Burditt  V.  Hunt 424 

liutler  V.  Frontier  Telephone  Co.  .  575 
Butler  and  Baker's  Case  .     .     .     .213 


Caldwell  v.  Tutt 293 

Calkins  v.  Lockwood 26 

Carpenter  v.  Dresser 456 

Cartwright  v.  Green 27 

Cass  V.  Higenbotham       ....  342 

Castner  v.  Riegel 769 

Ceffarelli  v.  Landino 558 

Challoner  v.  Robinson      ....  517 

Chalmers  v.  Smith 734 

Chamberlain  v.  West        ....     79 

Chapin  v.  Freeland 134 

Childress  v.  Wright 666 

Clark  V.  Maloney S3 

Clayton  v.  Corby 753 

Clayton  v.  Le  Roy 123 

Clemence  v.  Steere 727 

Clerk  V.  Clerk 483 

Clifton  V.  Bury        580 

Coclirane  v.  Moore 198 

Cockson  V.  Cock 815 

Coggs  V.  Bernard         283 

Commonwealth  v.  Ryan       ...     60 

Congham  v.  King 828 

Congleton  v.  Pattison       ....  820 

Cook  V.  Kane 278 

Cook  V.  Stearns 792 

Corbett  v.  Hill 570 

Countess  of  Shrewsbury's  Case  .  741 
Crosdale  v.  Lanigan 806 

Damo  V.  Dame        667 

Davis  V.  Easley 149 

Dean  v.  Hogg 66 

Dearbourn     v.     ITnion    National 

Bank 334 

Denny  v.  Warren 15 

Dever  v.  Hagerty ,507 

De  Vinne  v.  Rianliard  ....  242 
Dimock  V.  United  States  National 

Bank 364 

Doc  V.  Bateman 493 

Doe  V.  Cole 511 

Doe  V.  Passingham 544 

Dougherty  v.  Stepp .548 

Douglas  V.  Carpenter       ....  353 

Dragoo  v.  Cooper 143 

Drake,  ex  parte 192 

Durfee  v.  Jones 94 


Xll 


TABLE    OF    CASES. 


Earle  v.  Arbogast 742 

Ehrman  v.  Mayer 521 

Elliott  V.  Bowman 21 

Elwes  V.  Brigg  Gas  Co 84 

England  v.  Cowley 317 

English  V.  Key       518 

Evans  v.  Higdon 20 

Farkes  v.  Powell 435 

Fay  V.  Brewer 749 

First   Universalist   Society  v.  Bo- 
land  469 

Fisher  v.  Prince 454 

Fitzgerald  v.  Burrill 383 

Fitzgerald  v.  Elliott 57 

Foley  V.  Wyeth       549 

Folsom  V.  Barrett        340 

Ford  V.  State 37 

Fouldes  V.  Yv^illoughby     .     .     .     .310 

Frome  v.  Dennis 439 

Gaines  v.  Green  Pond  Mining  Co.  717 

Ghen  v.  Rich 7 

Gibbs  V.  Estey 675 

Gillespie  v.  Dew 51 

Gilson  V.  Fisk 432 

Goff  V.  Kilts       52 

Goodrich  v.  Burbank        ....  760 

Gordon  v.  Harper        448 

Goss  V.  Emerson 304 

Great  Southern  Gas  Co.  v.  Logan 

Natural  Gas  Co 173 

Green  v.  Dunn 325 

Griffith  V.  Fowler 130 

Gurley  v.  Armstead 422 

Hall  V.  Boston  Corporation   .     .     .  379 
Hamaker  v.  Blanchard     ....     97 

Hampton  v.  Brown 55 

Hanna  v.  Phelps 338 

Harrow  School  v.  Alderton     .     .  726 
Harvey  v.  Epes       ......  437 

Hennessy  v.  Carmody      ....  567 

Hepburn  v.  Sewell 196 

Higgins  V.  Flemington  Water  Co.  594 
Hildebrand  v.  People        ....     64 

Hill  V.  Tupper 765 

Hillebrand  v.  Nelson 652 

Hiort  V.  Bott 419 

Holbrook  v.  Chamberlain     .     .     .  698 

Holford  V.  Hatch 827 

Holland  v.  Hodgson 639 

Hollins  V.  Fowler 408 

Hollister  v.  Goodale 10 

Hook  ;;.  Bolton 662 

Hooks  V.  Smith 434 


Hopewell  Mills  v.  Taunton  Savings 

Bank 648 

Howell  V.  King        779 

Hubbell  V.  East  Cambridge  Bank    644 
Huddleston's  Admr.  v.  Currin        .  444 

Hudmon  v.  Dubose 429 

Huntington  v.  Blaisdell    ....     13 

Hurd  V.  Curtis 847 

Hurlbut  V.  McKone 585 

Hurst  V.  Gwennap 441 

Hyde  v.  Noble 441 

Idaho,  The 176 

Illinois  Coal  Co.  v.  Cobb       .     .     .113 

Jackson  v.  Alexander 529 

Jackson  v.  Cummins        ....  236 

Johnson  v.  Stear 356 

Johnson  v.  Whiton 467 

Jones  V.  Tarleton 337 

Keepers  v.  Fidelity  Title  and  De- 
posit Co 22 

Kellogg  V.  Robinson 852 

King  V.  Dunham          487 

Kingsbury  v.  Collins 704 

Kinnear  v.  Scenic  Railways  Co.     .  653 

KJruger  v.  Wilcox 253 

Laverty  v.  Snethen 380 

Lawrence  v.  Buck        82 

Lawton  v.  Salmon        635 

Leach  v.  Jay 505 

Ledyard  v.  Hibbard 230 

Lehigh  R.R.  Co.   v.  Bangor  Ry. 

Co 798 

Lemmon  v.  Webb 572 

Leonard  v.  Tidd 426 

Leppla  V.  Mackey 823 

Lipsky  V.  Borgmann 633 

Lord  Petre  v.  Heneage    ....  439 
Lucketts  V.  Townsend     ....  283 

Lutwich  V.  Mitton 526 

Lyon  V.  Parker        833 

Manders  v.  Williams 449 

Marshall  v.  Mellon 715 

Mason  v.  Smith 830 

Matthews  v.  Ward 465 

Matthews  v.  Ward's  Lessee     .     .541 

McAvoy  V.  Medina 104 

McCombie  v.  Davies 351 

McCormick  i'.  Horan       ....  613 
McCullough   V.    Broad   Exchange 

Co 781 

MoPartland  v.  Read 309 


TABLE    OF    CASES. 


xin. 


McPheters  v.  Page       .     .     . 
McWillie  v.  Van  Vacter 
Meeker  v.  East  Orange    .     . 
Melms  V.  Pabst  Brewing  Co. 

Miller  v.  Hyde 

Miller  v.  Race 

Minshull  v.  Oakes  .  .  . 
Moore  v.  Townsliend  . 
]\Ioors  V.  Reading  .... 
Morse  v.  Aldrich  .... 
Mulgrave  v.  Ogden  .  .  . 
Mulliner  v.  Florence    .     .     . 


Nash  I'.  Mosher 

Neal  V.  Jefferson 

Nelson  v.  Ivsrson 

Nichols  V.  Newsom 

Nicholson  v.  Chapman     .     .     .     . 
Nininger  v.  Norvrood        .     .     .     . 
Northern  Central  Ry.  Co.  v.  Can- 
ton Co 

Norton  v.  Woodruff 


Padelford  v.  Padelford     .     .     . 

Page  V.  Fowler 

Parker  v.  Godin 

Parks  V.  Bishop 

Pease  v.  Smith    ...... 

Penhallow  v.  Dwight        .     .     . 
Pennsylvania  R.R.  Co.  v.  Miller 
People  V.  Elk  River  Co.  .     .     . 

Phelps  V.  Ayers 

Pibus  V.  Mitford 

Pickering  v.  ]\Ioore     .... 

Pierson  v.  Post 

Pitts  V.  Lancaster  Mills   .     .     . 

Plume  V.  Sev,-ard 

Pulcifer  v.  Page 

Queen  v.  Ashwell         .... 


Radey  v.  McCurdy 

Ramsay  v.  Marsh 

Ramsby  v.  Beezley 

Randolph  v.  Doss 

Reeves  v.  Capper 

Regina  v.  Riley       

Rerick  v.  Kern 

Rice  V.  Boston  &  Worcester  R.R. 

Corporation 

Rice  V.  Nixon 

Richardson  v.  Atkinson    .     .     .     , 

Ricketts  v.  Dorrcl 

Rigden  v.  Vallier 

Rix  V.  Silknitter 

Robins  v.  Gray   ...'... 


345 
206 
627 
728 
183 
125 
825 
735 
295 
840 
347 
349 

303 

829 
427 
331 
243 
615 

677 
215 

723 
713 
401 
777 
386 
700 
592 
598 
685 
514 
169 
1 
597 
49 
166 

32 

695 

547 
390 
506 
294 
29 
802 

495 
225 
345 
167 
479 
17 
264 


Robinson  v.  Baker 273 

Robinson  v.  Walter 260 

Roche  V.  Ullman 843 

Roe  r.  Tranmer 534 

Rogers  v.  Huie 399 

Ruggles  V.  Walker       299 

Rushforth  r.  Hadfield  ....  256 
Ryan  v.  ^lonaghan 515 

Sanders  v.  Chandler 710 

Scarf e  v.  Morgan 335 

Schuitz  V.  Byers 552 

Seebaum  v.  Flandy 285 

Sexauer  v.  Wilson 855 

Sexton  V.  Graham 22S 

Shaber  v.  St.  Paul  Water  Co.    .     .  834 

Silsbury  v.  McCoon 157 

Simmons  v.  Lillystone      ....  347 

Simpkins  v.  Rogers 706 

Singer  Mfg.  Co.  v.  King  .  .  .327 
Singer  Mfg.  Co.  v.  London  Ry.  Co.  270 

Skinner  v.  Upshaw 234 

Smith  V.  Cooley 751 

Smith  V.  St.  Michael,  Cambridge  .  69 
Smith  V.  Thackerah     .     .     .     .     .  561 

Smyth  V.  Carter 727 

Snow  V.  Parsons 001 

South  Australian  Insurance  Co.  v. 

Randell 217 

South  Staffordshire  Water  Co.  v. 

Sharman 91 

S packman  v.  Foster 445 

Spencer's  Case        812 

Spooner  v.  Holmes 401 

Sproul  V.  Sloan 371 

Squire  &  Co.  v.  Portland       .     .     .  681 

State  V.  Martin 659 

State  V.  Schingen 59 

State  V.  Shaw .       5 

Steinman  i;.  Wilkins    .     .     .     .     .239 

Stephens  v.  Elwa'.l       421 

Stephenson  v.  Little 174 

Sterling,  ex  parte    ......  256 

Stevens  v.  Curtis 432 

Stevens  v.  Eames 349 

Stockwell  v.  Phelps 711 

Stultz  V.  Dickey 709 

Sturges  V.  Bridgman 581 

Symson  v.  Turner        544 

Talty  V.  Freedman's  Trust  Co.      .  374 

Tapscott  V.  Col)bs       106 

Tenbrook  v.  Brown 204 

Thomas  v.  Sorrell 7SS 

Thomes  v.  Moody        712 

Thompson  v.  Lacy 234 


XIV 


TABLE    OF    STATUTES. 


Thompson  v.  Thompson  .  .  .531 
Thorogood  v.  Robinson  .  .  .  .330 
Thurston  v.  Blauchard     ....  310 

Todd  I'.  Jackson Ill 

Tolles  V.  Winton 636 

Traylor  v.  Horrall 388 

Tyler  v.  Mason        591 

Tyrrel's  Case 541 

Tyson  v.  Post 674 

Van  Rensselaer  v.  Ball  ....  492 
Van  Rensselaer  v.  Hays   ....  483 

Varney  u.  Curtis 392 

Vernon  v.  Smith 817 

Vilas  V.  Mason 322 

Vinal  V.  Spcftord 289 

Wall  V.  Hinds 828 

Wata-iss  v.  First  National  Bank  .  689 
Webb  V.  Portland  Mfg.  Co.       .     .  609 

Weeks  v.  Hackett 99 

Wentworth  v.  Day 245 

Wetherbee  v.  Green 150 

Wheelwright  v.  Depeyster    .     .     .  124 


Whipple  V.  Dutton 361 

White  r.  Allen 80 

White  V.  Wagner 744 

Whitmarsh  v.  Cutting      ....  708 

Wilbraham  v.  Snow 81 

Wiiford's  Estate,  in  re     ...     .  484 

Wilkinson  v.  Wilkinson    ....  723 

Williams  v.  Earle 815 

Williams  v.  James        779 

Williams  v.  Lambe 474 

Willoughby  i'.  Lawrence      .     .     .  763 

Wilson  V.  Anderton 326 

Wilson  V.  Guyton 248 

Winchester  i'.  City  of  Stevens  Point  118 

Winkfield,  The        72 

Winji  r.  State 490 

Wood  V.  Leadbitter 788 

Wood  V.  Manley 796 

Woodliff  V.  Drury 539 

Woodman  v.  Hubbard     ....  433 


Young  V.  Hichens 
Zimmerman  i'.  SInreeve 


4 
71 


TABLE   OF   STATUTES. 


18  Edw.  I,  c.  1  (Quia  Emptores)  462 

13  Edw.  I,  c.  1  (De  Bonis) 470 

27  Hen.  VIII,  c.  10  (Uses) 524 

27  Hen.  VIU,  c.  16  (Enrolments)        525 

32  Hen.  VIII,  c.  34  (Covenants  Running  with  the  Land)        ....  81C 


OASES  ON  PROPERTY. 


BOOK  I. 
POSSESSION. 


CHAPTER   I. 
THE  NATURE  OF  POSSESSION. 


SECTION   1. 

TAKING   POSSESSION   OF   CHATTELS. 

A.  The  Power  to  Control. 


PIERSON  V.  POST. 

3  Caines  (N.Y.)  175.    1805. 

This  was  an  action  of  trespass  on  the  case  commenced  in  a  jus- 
tice's court,  by  the  present  defendant  against  the  now  plaintiff.  The 
declaration  stated,  that  Post,  being  in  possession  of  certain  dogs  and 
hounds  under  his  command,  did  ''upon  a  certain  wild  and  uninhab- 
ited, unpossessed  and  waste  land,  called  the  beach,  find  and  start  one 
of  those  noxious  beasts  called  a  fox,"  and  whilst  there  hunting, 
chasing  and  pursuing  the  same  with  his  dogs  and  hounds,  and  when 
in  view  thereof,  Pierson,  well  knowing  the  fox  was  so  hunted  and 
pursued,  did  in  the  sight  of  Post,  to  prevent  his  catching  the  same, 
kill  and  carry  it  off.  A  verdict  ha\dng  been  rendered  for  the  plaintiff 
below,  the  defendant  there  sued  out  a  certiorari,  and  now  assigned 
for  error,  that  the  declaration  and  the  matters  therein  contained 
were  not  sufficient  in  law  to  maintain  an  action. 

Tompkins,  J.  This  cause  comes  before  us  on  a  return  to  a  certi- 
orari directed  to  one  of  the  justices  of  Queen's  County. 

The  question  submitted  by  the  counsel  in  this  cause  for  our  deter- 
mination is,  whether  Lodowick  Post,  by  the  pursuit  with  his  hounds 
in  the  manner  alleged  in  his  declaration,  acquired  such  a  right  to,  or 
property  in  the  fox,  as  will  sustain  an  action  against  Pierson  for 
killing  and  taking  him  away? 

The  cause  was  argued  with  much  ability  by  the  counsel  on  both 
sides,  and  presents  for  our  decision  a  novel  and  nice  question.   It  is 


2  PIERSON   V.   POST.  [chap.  I. 

admitted,  that  a  fox  is  an  animal  ferce  naturce,  and  that  property  in 
such  animals  is  acquired  by  occupancy  only.  These  admissions  nar- 
row the  discussion  to  the  simple  question  of  what  acts  amount  to 
occupancy,  applied  to  acquiring  right  to  wild  animals. 

If  we  have  recourse  to  the  ancient  writers  upon  general  principles 
of  law,  the  judgment  below  is  ob\'iously  erroneous.  Justinian's  In- 
stitutes, lib.  2,  tit.  I,  sect.  13,  and  Fleta,  lib.  iii,  c.  ii,  page  175,  adopt  the 
principle,  that  pursuit  alone,  vests  no  property  or  right  in  the  hunts- 
man ;  and  that  even  pursuit  accompanied  vnih.  wounding,  is  equally 
ineffectual  for  that  purpose,  unless  the  animal  be  actually  taken. 
The  same  principle  is  recognised  by  Bradon,  \\h.  ii,  c.  i,  page  8. 

Pujfendorf,  lib.  iv,  c.  6,  sec.  2,  §  10,  defines  occupancy  of  beasts 
ferce  naturce,  to  be  the  actual  corporal  possession  of  them,  and  Byn- 
kershoek  is  cited  as  coinciding  in  this  definition.  It  is  indeed  ■\^'ith 
hesitation  that  Puffendorf  affirms  that  a  wild  beast  mortally 
wounded,  or  greatly  maimed,  cannot  be  fairly  intercepted  by  an- 
other, whilst  the  pursuit  of  the  person  inflicting  the  wound  continues. 
The  foregoing  authorities  are  decisive  to  shew  that  mere  pursuit 
gave  Post  no  legal  right  to  the  fox,  but  that  lie  became  the  property 
of  Pierson,  who  intercepted  and  killed  him. 

It  therefore  only  remains  to  inquire,  whether  there  are  any  con- 
trary principles,  or  authorities,  to  be  found  in  other  books,  which 
ought  to  induce  a  different  decision.  JMost  of  the  cases  which  have 
occurred  in  England,  relating  to  property  in  wild  anim.als,  have  either 
been  discussed  and  decided  upon  the  principles  of  their  positive  stat- 
ute regulations,  or  have  arisen  between  the  huntsm.an  and  the  owner 
of  the  land  upon  which  beasts  ferce  naturce  have  been  apprehended; 
the  former  claiming  them  b}'  title  of  occupancy,  and  the  latter  ratione 
soli.  Little  satisfactory  aid  can,  therefore,  be  derived  from  the  Eng- 
lish reporters. 

Barbeyrac,  in  his  notes  on  Puffendorf ,  does  not  accede  to  the  defi- 
nition of  occupancy  by  the  latter,  but,  on  the  contrary,  affirms  that 
actual  l^odily  seizure  is  not,  in  all  cases,  necessary  to  constitute  pos- 
session of  wild  animals.  He  does  not,  however,  chscrihe  the  acts 
which,  according  to  his  ideas,  vdW  amount  to  an  appropriation  cf 
such  animals  to  private  use,  so  as  to  exclude  the  claims  of  all  other 
persons,  l^y  title  of  occupancy,  to  the  same  animals;  and  he  is  far 
from  averring  that  pursuit  alone  is  sufficient  for  that  purpose.  To  a 
certain  extent,  and  as  far  as  Barbeyrac  appears  to  me  to  go,  his  ob- 
jections to  Puffendorf's  definition  of  occupancy  are  reasonable  and 
correct.  That  is  to  say,  that  actual  bodily  seizure  is  not  indispens- 
able to  acquire  right  to  or  possession  of  wild  beasts;  but  that,  on  the 
contrary,  the  mortal  wounding  of  such  beasts,  by  one  not  abandon- 
ing his  pursuit,  may,  with  the  utmost  propriety,  be  deemed  posses- 
sion of  him;  since  thereby,  the  pursuer  manifests  an  unequivocal 
intention,  of  appropriating  the  animal  to  his  individual  use,  has  de- 


SECT.   I.]  PIERSON    V.    POST.  8 

prived  him  of  his  natural  liberty,  and  brought  him  within  his  certain 
control.  So,  also,  encompassing  and  securing  such  animals  with  nets 
and  toils,  or  otherwise  intercepting  them,  so  as  to  deprive  them  of 
their  natural  liberty,  and  render  escape  impossible,  may  justly  be 
deemed  to  give  possession  of  them  to  those  persons  who,  by  their 
industry  and  labor,  have  used  such  means  of  apprehending  them. 
Barbeyrac  seems  to  have  adopted,  and  had  in  view  in  his  notes,  the 
more  accurate  opinion  of  Grotius,  with  respect  to  occupancy.  That 
celebrated  author,  lib.  ii,  c.  8,  sect.  3,  page  309,  speaking  of  occu- 
pancy, proceeds  thus,  "  Requiritur  autem  corporalis  qucedarii  possessio 
ad  dominium  adipiscendum ;  atque  ideo,  vulnerasse  non  sufficit."  But 
in  the  following  section  he  explains  and  qualifies  this  definition  of 
occupancy:  "Sed  possessio  ilia  potest  non  solis  manibus,  sed  instru- 
mentis,  ut  decipidis,  retihus,  laqueis  dum  quo  adsint :  primum  ut  ipsa 
instrumenta  sint  in  nostra  potestate,  deinde  ut  fera,  ita  inclusa  sit,  ut 
exire  inde  yiequeat."  This  qualification  embraces  the  full  extent  of 
BarbejTac's  objection  to  Puffendorf 's  definition,  and  allows  as  great 
a  latitude  to  acquiring  property  by  occupancy,  as  can  reasonably  be 
inferred  from  the  words  or  ideas  expressed  by  Barbe\Tac  in  his  notes. 
The  case  now  under  consideration  is  one  of  mere  pursuit,  and  presents 
no  circumstances  or  acts  which  can  bring  it  within  the  definition  of 
occupancy  by  Puffendorf,  or  Grotius,  or  the  ideas  of  Barbeyrac  upon 
the  subject. 

The  case  cited  from  11  Mod.  74-130,  I  think  clearly  distinguish- 
able from  the  present,  inasmuch  as  there  the  action  was  for  mali- 
ciously hindering  and  disturbing  the  plaintiff  in  the  exercise  and  en- 
joyment of  a  private  franchise;  and  in  the  report  of  the  same  case, 
3  Salk.  9,  Holt,  Chief  Justice,  states,  that  the  ducks  were  in  the 
plaijLtiff'A  decoy  pond  and  so  in  his  possession,  from  which  it  is  obvi- 
ous the  court  laid  much  stress  in  their  opinioUj  upon  the  plaintiff's 
possession  of  the  ducks,  iCQUo^Siii-  ^ 

I  am  the  more  readily  inclined  to  confine  possession  or  occupancy 
of  beasts  fera  naiurce  within  the  limits  prescribed  by  the  learned  au- 
thors above  cited,  for  the  sake  of  certainty,  and  preserving  peace 
and  order  in  society.  If  the  first  seeing,  starting  or  pursuing  such 
animals,  without  having  so  wounded,  circumvented  or  ensnared 
them,  so  as  to  deprive  them  of  their  natural  liberty,  and  subject  them 
to  the  control  of  their  pursuer,  should  afford  the  basis  of  actions 
against  others  for  intercepting  and  killing  them,  it  would  prove  a 
fertile  source  of  quarrels  and  litigation. 

However  uncourteous  or  unkind  the  conduct  of  Pierson  towards 
Post,  in  this  instance,  may  have  been,  yet  his  act  was  productive  of 
no  injury  or  damage,  for  which  a  legal  remedy  can  be  applied.  I  am 
of  opinion  the  judgment  below  was  erroneous,  and  ought  to  be  re- 
versed.^ 

'  LivixGSTON,  J.,  dolivcred  a  dissenting  opinion. 


4  TOTJNG   V.    mCHENS,  [cHAP.  I. 

YOUNG  V.  HICHENS. 

6  Q.  B.   606.    1844. 

Trespass.  The  first  count  charged  that  defendant,  with  force, 
etc.,  seized  and  disturbed  a  fishing  sean  and  net  of  plaintiff,  throv^Ti 
into  the  sea  for  fish,  wherein  the  plaintiif  had  taken  and  inclosed,  and 
then  held  inclosed  in  his  own  possession,  a  large  number  of  fi.sh,  to 
wit,  etc.,  and  that  defendant  threw  another  fishing  sean  and  net 
within  and  upon  the  plaintiff's  sean  and  net,  and  for  a  long  time,  to 
wit,  etc.,  prevented  plaintiff  from  taking  the  fish,  so  taken  and  in- 
closed, out  of  his  sean  and  net,  as  he  could  othermse  have  done; 
and  drove,  etc.,  the  fish;  whereby  part  of  them  cUed,  part  were  in- 
jured, and  part  escaped;  and  the  sean  and  net  was  injured.  Second 
count,  that  defendant  with  force  &c.,  seized,  took,  and  converted 
fish  of  plaintiff. 

Pleas.     1.  Not  guilt3^     Issue  thereon. 

2.  To  the  first  count,  as  to  preventing  plaintiff  from  taking  the 
fish  alleged  to  be  inclosed  in  his  possession,  and  driving,  etc.,  the 
said  fish:  that  the  fish  were  not  plaintiff's  fish,  and  he  was  not  pos- 
sessed of  them,  in  manner,  et<;.;  conclusion  to  the  country.  Issue 
thereon. 

3.  To  the  second  count,  that  the  fish  were  not  the  plaintiff's  fish, 
in  manner,  etc. :  conclusion  to  the  country.   Issue  thereon. 

On  the  trial  before  Atcherley,  Serjt.,  at  the  Cornwall  Spring  As- 
sizes, 1843,  it  appeared  that  the  plaintiff  had  drawn  his  net  partially 
round  the  fish  in  question,  leaving  a  space  of  about  seven  fathoms 
open,  which  he  was  about  to  close  '\^dth  a  stop  net;  that  two  boats, 
belonging  to  the  plaintiff,  were  stationed  at  the  opening,  and  splash- 
ing the  water  about,  for  the  purpose  of  terrifying  the  fish  from  pass- 
ing through  the  opening,  and  that,  at  this  time,  the  defendant  rowed 
his  boat  up  to  the  opening,  and  the  disturbance,  and  taking  of  the 
fish  complained  of,  took  place.  The  learned  Sergeant  left  to  the  jury 
the  question  of  fact  whether  the  fish  were  at  that  time  in  the  plain- 
tiff's possession,  and  also  other  questions  of  fact  on  the  other  issues. 
Verdict  for  plaintiff  on  all  the  issues,  with  damages  separately  as- 
sessed, namely,  568Z.  for  the  value  of  the  fish,  and  IZ.  for  the  dam- 
age done  to  the  net. 

Lord  Denman,  C.  J.  It  does  appear  almost  certain  that  the  plain 
tiff  would  have  had  possession  of  the  fish  but  for  the  act  of  the  de 
fendant :  l^ut  it  is  quite  certain  that  he  had  not  possession.  Whatever 
interpretation  may  be  put  upon  such  terms  as  "custody"  and  "pos- 
session," the  question  will  be  whether  any  custody  or  possession  has 
been  obtained  here.  I  think  it  is  impossible  to  say  that  it  had,  until 
the  party  had  actual  power  over  the  fish.  It  may  be  that  the  defend- 
ant acted  unjustifiably  in  preventing  the  plaintiff  from  obtaining 


SECT.  I.]  STATE    V,    SHAW.  5 

such  power :  but  that  would  only  shew  a  "SNTongful  act,  for  which  he 
Tiight  be  hable  in  a  proper  form  of  action, 

Patteson,  J.  I  do  not  see  how  we  could  support  the  affirmative 
of  these  issues  upon  the  present  e\idence,  unless  we  were  prepared  to 
hold  that  all  but  reducing  into  possession  is  the  same  as  reducing 
into  possession.  Whether  the  plaintiff  has  any  cause  of  action  at  all 
is  not  clear:  possibly  there  may  be  a  remedy  under  the  statutes, 

WiGHTMAN,  J,  I  am  of  the  same  opinion.  If  the  property  in  the 
fish  was  vested  in  the  plaintiff  by  his  partially  inclosing  them  but 
leaving  an  opening  in  the  nets,  he  would  be  entitled  to  maintain  trover 
for  fish  which  escaped  through  that  very  opening. 

(Coleridge,  J.,  was  absent.) 

Rule  absolute  for  reducing  the  damages  to  20s.,  and  entering  the 
verdict  for  defendant  on  the  second  and  third  issues. 

STATE  v.  SHAW. 

67  Ohio  State,  157.     1902. 

jdlxcEPTiONS  to  the  Court  of  Common  Pleas  of  Lake  County, 
_  The  defendants  in  error  were  indicted  in  Lake  County  for  the  crime 

f^  ^a!  \  of  grand  larceny.     The  indictment  is  as  follows :  — 

"In  the  court  of  common  pleas  of  Lake  County,  Ohio,  of  the  term 
;.  of  May,  in  the  year  of  our  Lord  one  thousand  nine  hundred  and  one. 

Y"'  "The  jurors  of  the  gi'and  jury  of  the  State  of  Ohio,  within  and  for 

ry,^*j     \  the  body  of  the  County  of   Lake,    duly  impaneled,  sw^om   and 

\  charged  to  inquire  of  crimes  and  offences  committed  v/ithin  the  said 

County  of  Lake,  in  the  name  and  by  the  authority  of  the  State  of 
Ohio,  upon  their  oaths  do  find  and  present,  that  Henr\^  Shaw,  John 
Thomas  and  James  Fostine,  late  of  said  county,  on  the  fifteenth  day 
of  May,  in  the  year  of  our  Lord  one  thousand  nine  hundred  and  one, 
with  force  and  arms,  in  said  Count\^  of  Lake  and  State  of  Ohio,  un- 
lawfully and  feloniously  did  steal,  take  and  cany  away  seven  hun- 
dred and  thirty  pounds  of  fish,  of  the  value  of  forty-one  dollars,  of 
the  personal  property  of  Morris  E.  Grow,  and  John  Hough,  partners 
as  Grow  and  Hough,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the  State 
of  Ohio." 

One  of  the  defendants,  John  Thomas,  was  tried  separately.  On 
the  trial  no  evidence  was  offered  by  the  defendant.  The  evidence 
offered  by  the  State  disclosed  that  on  the  morning  of  May  15,  1901, 
about  5  or  6  o'clock,  a  small  sail-boat  was  discovered  two  or  three 
miles  off  Fairport  harbor;  a  tug  ran  out  and  overhauled  this  boat  and 
discovered  they  had  fish  on  board.  In  reply  to  an  inquiry  where  they 
had  got  the  fish  they  said  near  Cleveland  out  of  a  trap  net.    They 


6  STATE    V.    SHAW.  [CHAP.  I. 

were  asked  to  come  to  the  harbor  with  the  tug,  and  refused;  two 
other  tugs  came  to  the  assistance  of  the  one  already  there,  and 
brought  in  the  defendants,  with  their  boat,  and  they  were  arrested. 
It  is  in  evidence  that  on  the  way  in,  the  defendant,  John  Thomas, 
said  that  "they  hfted  two  pound  nets  west  of  the  pier  and  got  the 
fish."  The  testimony  further  tended  to  show  that  the  two  pound  nets 
belonged  to  Grow  and  Hough,  the  parties  named  in  the  indictment, 
and  that  the  defendants  had  taken  from  these  two  nets  somewhere 
from  100  to  150  pounds  of  fish,  each.  It  also  appears  that  the  con- 
struction of  these  pound  nets  is  such  that  the  entrance  to  the  net  was 
about  thirty-five  feet  deep,  eight  rods  long,  and  terminated  in  an 
aperture  leading  into  the  net,  which  was  two  feet  and  ten  inches  in 
diameter.  This  tunnel,  as  it  is  called,  extended  into  the  net,  or  pot, 
some  five  or  six  feet,  and  the  pot  was  about  twenty-eight  feet  square, 
reaching,  perhaps,  four  feet  above  the  water.  The  evidence  shows 
that  the  opening  of  the  tunnel  into  the  pot  was  the  place  where  the 
fish  entered,  and  that  it  was  at  all  times  left  open.  There  is  no  evidence 
as  to  the  quantity  of  fish  escaping  from  the  nets;  it  simply  appears 
that  it  was  possible  for  the  fish  to  go  out  in  the  same  way  they  got  in. 
It  was  also  in  evidence  that  these  nets  were  frequently  disturbed  by 
wind  and  storm,  and  at  such  times  so  disordered  that  fish  escaped 
over  the  top.  When  the  state  had  rested  its  case  the  defendant, 
Thomas,  moved  the  court  to  arrest  the  testimony  from  the  jury  and 
direct  a  verdict  of  not  guilty.  ■  The  court  overruled  this  motion,  but 
after  argument  did  direct  a  verdict  of  not  guilty,  which  was  re- 
turned by  the  jury,  and  to  which  the  state  excepted. 

Davis,  J.  Fish  are/erce  naturce;  yet,  "where  the  animals  or  other 
creatures  are  not  domestic,  but  are  ferce  naturce,  larceny  may,  not- 
withstanding, be  committed  of  them,  if  they  are  fit  for  food  of  man 
and  dead,  reclaimed  (and  known  to  be  so)  or  confined."  .  .  .  "Fish 
confined  in  a  tank  or  net  are  sufficiently  secured."  2  Bishop,  Cr. 
Law,  sect.  775. 

The  trial  judge  seems  to  have  directed  the  jury  to  return  a  verdict 
of  "not  guilty"  on  the  theory  that  the  fish  must  have  been  confined 
so  that  there  was  absolutely  no  possibility  of  escape.  We  think  that 
this  doctrine  is  both  unnecessarily  technical  and  erroneous.  For  ex- 
ample, bees  in  a  hive  may  be  the  subject  of  larceny,  yet  it  is  possible 
for  the  bees  to  leave  the  hive  by  the  same  place  at  which  they  entered. 
To  acquire  a  property  right  in  animals /erce  naturce,  the  pursuer  must 
bring  them  into  his  power  and  control,  and  so  maintain  his  control 
as  to  show  that  he  does  not  intend  to  abandon  them  again  to  the 
world  at  large.  When  he  has  confined  them  within  his  own  private 
enclosure  where  he  may  subject  them  to  his  own  use  at  his  pleasure, 
and  maintains  reasonable  precautions  to  prevent  escape,  they  are  so 
impressed  with  his  proprietorship  that  a  felonious  taking  of  them 
from  his  enclosure,  whether  trap,  cage,  park,  net,  or  whatever  it  may 


SECT.   I.]  GHEN    V.    RICH.  7 

be,  will  be  larceny.  For  such  cases,  as  is  clearly  show^^  by  the  au- 
thorities above  quoted,  the  law  does  not  require  absolute  security 
against  the  possibility  of  escape,  and  none  of  the  authorities  cited 
for  the  defendants  in  error,  except  Norton  v.  Ladd,  5  N.H.  203,  sus- 
tain their  contention.  Young  v.  Hichens,  6  Ad.  &  Ell.,  N.S.,  606; 
s.  c,  51;  E.  C.  L.  606,  is  not  applicable  to  this  case.  That  was  an 
action  for  the  conversion  of  fish  which  were  never  in  the  plaintiff's 
net,  but  had  been  frightened  away  from  entering  into  the  plaintiff's 
net  by  the  defendant  and  caught  in  his  o\\ti  net. 

In  the  present  case  the  fish  were  not  at  large  in  Lake  Erie.  They 
were  confined  in  nets,  from  which  it  was  not  absolutely  impossible 
for  them  to  escape,  yet  it  was  practically  so  impossible;  for  it  seems 
that  under  ordinary  circumstances  few,  if  any,  of  the  fish  escape. 
The  fish  that  wxre  taken  had  not  escaped,  and  it  does  not  appear  that 
they  would  have  escaped,  or  even  that  they  probably  would  have 
escaped.  They  were  so  safely  secured  that  the  owners  of  the  nets 
could  have  taken  them  out  of  the  water  at  will  as  readily  as  the  de- 
fendants did.  The  possession  of  the  owners  of  the  nets  was  so  com- 
plete and  certain  that  the  defendants  went  to  the  nets  and  raised 
them  with  absolute  assurance  that  they  could  get  the  fish  that  were 
in  them.  We  think,  therefore,  that  the  o^\^lers  of  the  nets,  having 
captured  and  confined  the  fish,  had  acciuired  such  a  property  in  them 
that  the  taking  of  them  was  larceny. 

ExQeytions  sustained. 


GHEN  V.   RICH. 

8  Fed.  Rep.  159.    1881. 

Nelson,  D.  J.  This  is  a  libel  to  recover  the  value  of  a  fin-back 
whale.  The  libellant  fives  in  Provincetown  and  the  respondent 
in  Wellfleet.  The  facts,  as  they  appeared  at  the  hearing,  are  as 
follows :  — 

In  the  early  spring  months  the  easterly  part  of  Massachusetts  Bay 
is  frequented  by  the  species  of  whale  known  as  the  fin-back  whale. 
Fishermen  from  Provinceto^^m  pursue  them  in  open  l)oats  from  the 
shore  and  shoot  them  with  bomb-lances  fired  from  guns  made 
expressly  for  the  purpose.  When  killed  they  sink  at  once  to  the 
bottom,  but  in  the  course  of  from  one  to  three  days  they  rise  and 
float  on  the  surface.  Some  of  them  are  picked  up  by  vessels  and 
towed  into  Provincetown.  Some  float  ashore  at  higii  water  and  are 
left  stranded  on  the  beach  as  the  tide  recedes.  Others  float  out  to  sea 
and  are  never  recovered.  The  person  who  happens  to  find  them  on 
the  beach  usually  sends  word  to  Provincetown,  and  tlie  owner  comes 
to  the  spot  and  removes  the  blubber.  The  finder  usually  receives  a 
small  salvage  for  his  services.  Try-works  are  established  in  Province- 


8  GHEN    V.    RICH.  [CHAP.  I. 

to^\^l  for  trying  out  the  oil.  The  business  is  of  considerable  extent, 
but,  since  it  requires  skill  and  experience,  as  well  as  some  outlay  of 
capital,  and  is  attended  with  great  exposure  and  hardship,  few  per- 
sons engage  in  it.  The  average  yield  of  oil  is  about  twenty  barrels  to 
a  whale.  It  swims  \\dth  great  swiftness,  and  for  that  reason  cannot 
be  taken  by  the  harpoon  and  line.  Each  boat's  crew  engaged  in  the 
business  has  its  peculiar  mark  or  device  on  its  lances,  and  in  this  way 
it  is  kno'wn  by  whom  the  whale  is  killed. 

The  usage  on  Cape  Cod,  for  many  years,  has  been  that  the  person 
who  kills  a  whale  in  the  manner  and  under  the  circumstances  de- 
scribed, owns  it,  and  this  right  has  never  been  disputed  until  this 
case.  The  libellant  has  been  engaged  in  this  business  for  ten  years 
past.  On  the  morning  of  April  9,  1880,  in  Massachusetts  Bay,  near 
the  end  of  Cape  Cod,  he  shot  and  instantly  killed  with  a  bomb-lance 
the  whale  in  question.  It  sunk  immediately,  and  on  the  morning  of 
the  12th  was  found  stranded  on  the  beach  in  Brewster,  within  the 
ebb  and  flow  of  the  tide,  by  one  Ellis,  seventeen  miles  from  the  spot 
where  it  was  killed.  Instead  of  sending  word  to  Provinceto\Aai,  as  is 
customary,  Ellis  advertised  the  whale  for  sale  at  auction,  and  sold  it 
to  the  respondent,  who  shipped  off  the  blubber  and  tried  out  the  oil. 
The  libellant  heard  of  the  finding  of  the  whale  on  the  morning  of  the 
15th,  and  immediately  sent  one  of  his  boat's  crew  to  the  place  and 
claimed  it.  Neither  the  respondent  nor  Ellis  knew  the  whale  had 
been  killed  by  the  libellant,  but  they  knew  or  might  have  known,  if 
they  had  wished,  that  it  had  been  shot  and  killed  with  a  bomb-lance, 
by  some  person  engaged  in  this  species  of  business. 

The  libellant  claims  title  to  the  whale  under  this  usage.  The 
respondent  insists  that  this  usage  is  invalid.  It  was  decided  by  Judge 
Sprague,  in  Taber  v.  Jenny,  1  Sprague,  315,  that  when  a  whale  has 
been  killed,  and  is  anchored  and  left  with  marks  of  appropriation, 
it  is  the  property  of  the  captors;  and  if  it  is  afterwards  found,  still 
anchored,  by  another  ship,  there  is  no  usage  or  principle  of  law  by 
which  the  property  of  the  original  captors  is  diverted,  even  though 
the  whale  may  have  dragged  from  its  anchorage.  Tlie  learned  judge 
says : — 

"When  the  whale  had  been  killed  and  taken  possession  of  by 
the  boat  of  Hillman  (the  first  taker)  it  became  the  property  of  the 
owners  of  that  ship,  and  all  was  done  which  was  then  practicable  in 
order  to  secure  it.  They  left  it  anchored,  with  unequivocal  marks  of 
appropriation." 

In  Bartlett  v.  Bndd,  1  Low.  223,  the  facts  were  these:  The  first 
officer  of  the  libellant's  ship  killed  a  whale  in  the  Okhotsk  Sea, 
anchored  it,  attached  a  waif  to  the  body,  and  then  left  it  and  went 
ashore  at  some  distance  for  the  night.  The  next  morning  the  boats 
of  the  respondent's  ship  found  the  whale  adrift,  the  anchor  not  hold- 
ing, the  cable  coiled  round  the  body,  and  no  waif  or  irons  attached 


SECT.  I.]  GHEN   V.    RICH.  9 

to  it.  Judge  Lowell  held  that,  as  the  libellants  had  killed  and  taken 
actual  possession  of  the  whale,  the  ownership  vested  in  them.  In  his 
opinion  the  learned  judge  says:  — 

"A  whale,  being /erce  naturce,  does  not  become  property  until  a 
firm  possession  has  been  established  by  the  taker.  But  when  such 
possession  has  become  firm  and  complete,  the  right  of  property  is 
clear,  and  has  all  the  characteristics  of  property." 

He  doubted  whether  a  usage  set  up  but  not  proved  by  the  respond- 
ents, that  a  whale  found  adrift  in  the  ocean  is  the  property  of  the 
finder,  unless  the  first  taker  should  appear  and  claim  it  before  it  is 
cut  in,  would  be  valid,  and  remarked  that  "there  would  be  great 
difficulty  in  upholding  a  custom  that  should  take  the  property  of  A. 
and  give  it  to  B.,  under  so  very  short  and  uncertain  a  substitute  for 
the  statute  of  limitations,  and  one  so  open  to  fraud  and  deceit." 
Both  the  cases  cited  were  decided  without  reference  to  usage,  upon 
the  ground  that  the  property  had  been  acquired  by  the  first  taker 
by  actual  possession  and  appropriation. 

In  Smft  V.  Gifford,  2  Low.  110,  Judge  Lowell  decided  that  a  cus- 
tom among  whalemen  in  the  Arctic  seas,  that  the  iron  holds  the 
whale,  was  reasonable  and  valid.  In  that  case  a  boat's  crew  from  the 
respondent's  ship  pursued  and  struck  a  whale  in  the  Arctic  Ocean, 
and  the  harpoon  and  the  line  attached  to  it  remained  in  the  whale, 
but  did  not  remain  fast  to  the  boat.  A  boat's  crew  from  the  libel- 
lant's  ship  continued  the  pursuit  and  captured  the  whale,  and  the 
master  of  the  respondent's  ship  claimed  it  on  the  spot.  It  was  held 
bj'  the  learned  judge  that  the  whale  belonged  to  the  respondents.  It 
was  said  by  Judge  Sprague,  in  Bourne  v.  Ashley,  an  unprinted  case 
referred  to  by  Judge  Lowell  in  Swift  v.  Gifford,  that  the  usage  for 
the  first  iron,  whether  attached  to  the  boat  or  not,  to  hold  the  whale 
was  fully  established;  and  he  added  that,  although  local  usages  of  a 
particular  port  ought  not  to  be  allowed  to  set  aside  the  general 
maritime  law,  this  objection  did  not  apply  to  a  custom  which  em- 
braced an  entire  business,  and  had  been  concurred  in  for  a  long  time 
by  every  one  engaged  in  the  trade. 

In  Swift  V.  Gifford,  Judge  Lowell  also  said :  — 

"The  rule  of  law  invoked  in  this  case  is  one  of  very  limited  appli- 
cation. The  whale  fishery  is  the  onlj^  branch  of  industry  of  any 
importance  in  which  it  is  likely  to  be  much  used,  and  if  a  usage  is 
found  to  prevail  generally  in  that  business,  it  will  not  be  open  to  the 
objection  that  it  is  likely  to  disturb  the  general  understanding  of 
mankind  by  the  interposition  of  an  arbitrary  exception." 

I  see  no  reason  why  the  usage  proved  in  this  case  is  not  as  reason- 
able as  that  sustained  in  the  case  cited.  Its  application  must  neces- 
sarily be  extremely  limited,  and  can  affect  but  a  few  persons.  It  has 
been  recognized  and  acquiesced  in  for  many  years.  It  requires  in  the 
first  taker  the  only  act  of  appropriation  that  is  possible  in  the  nature 


10  HOLLISTER    V.    GOODALE.  [CHAP.  I. 

of  the  case.  Unless  it  is  sustained,  this  branch  of  industry  must 
necessarily  cease,  for  no  person  would  engage  in  it  if  the  fruits  of  his 
labor  could  be  appropriated  by  any  chance  finder.  It  gives  reason- 
able salvage  for  securing  or  reporting  the  property.  That  the  rule 
works  well  in  practice  is  shown  by  the  extent  of  the  industry  which 
has  grown  up  under  it,  and  the  general  acquiescence  of  a  whole  com- 
munity interested  to  dispute  it.  It  is  by  no  means  clear  that  Avithout 
regard  to  usage  the  common  law  would  not  reach  the  same  result. 
That  seems  to  be  the  effect  of  the  decisions  in  Taher  v.  Jenny  and 
Bartlett  v.  Budd.  If  the  fisherman  does  all  that  it  is  possible  to  do  to 
make  the  animal  his  o\n\,  that  would  seem  to  be  sufficient.  Such  a 
rule  might  well  be  applied  in  the  interest  of  trade,  there  being  no 
usage  or  custom  to  the  contrary.  Holmes,  Com.  Law,  217.  But  be 
that  as  it  may,  I  hold  the  usage  to  be  valid,  and  that  the  property  in 
the  whale  was  in  the  libellant. 

The  rule  of  damages  is  the  market  value  of  the  oil  obtained  from 
the  whale,  less  the  cost  of  trying  it  out  and  preparing  it  for  the  mar- 
ket, A%dth  interest  on  the  amount  so  ascertained  from  the  date  of 
conversion.  As  the  question  is  new  and  important,  and  the  suit  is 
contested  on  both  sides,  more  for  the  purpose  of  having  it  settled 
than  for  the  amount  involved,  I  shall  give  no  costs. 

Decree  for  the  libellant  for  $71.05,  without  costs. 


HOLLISTER  v.  GOODALE. 

8  Conn.  332.    1831. 

This  was  an  action  of  trespass  for  taking  and  carrying  away  a 
barouche  and  harness. 

The  cause  was  tried  at  Hartford,  February  term,  1831,  before 
Peters,  J. 

The  claim  of  the  plaintiff  for  the  harness,  was  abandoned  at  the 
trial;  and  the  controversy  regarded  the  barouche  only.  Both  the 
plaintiff  and  the  defendant  were  constables  of  the  town  of  Glaston- 
bury, and  claimed  to  have  taken  this  property,  under  different  writs 
of  attachment,  issued  against  Henry  Benton;  and  the  issue  turned 
on  the  priority  of  service. 

On  the  part  of  the  plaintiff,  it  was  claimed,  that  the  barouche  was 
in  Benton's  carriage-house,  the  door  of  which  was  fastened  by  a 
padlock;  that  the  plaintiff,  having  lawfully  obtained  the  ke}^,  went  to 
the  carriage-house,  unlocked  the  door,  and  attached  the  barouche, 
declaring  that  he  attached  all  the  carriages  and  harnesses  in  the 
carriage-house ;  and  that  while  he  was  attempting  to  remove  the 
barouche,  the  defendant  forcibly  took  it  from  his  possession,  and 
afterwards  sold  it  at  the  post. 


SECT.  I.]  HOLLISTER   V.    GOODALE.  11 

On  the  other  hand,  it  was  claimed  by  the  defendant,  that  he  went 
with  his  attachment  near  the  carriage-house,  and  concealed  himself; 
that  when  the  plaintiff  unlocked  the  door,  the  defendant  first  entered, 
and  attached  the  barouche;  that  the  plaintiff  neither  attached  the 
property,  nor  took  possession  of  it;  and  that  some  time  afterwards, 
the  defendant  returned  to  the  carriage-house,  and  attached  the 
harness  and  removed  it. 

The  judge  charged  the  jury,  that  if  the  plaintiff  was  at  the  carriage- 
house  before  the  barouche  was  attached  by  the  defendant,  and  had  a 
WTit  of  attachment  in  his  hands,  and  the  key  of  the  carriage-house  in 
his  possession,  and  was  unlocking  the  door,  at  the  same  time  declar- 
ing that  he  attached  the  property;  he  thereby  obtained  the  custody 
and  possession  of  it ;  and  that  this,  without  an  actual  touching  of  it, 
constituted  an  attachment  of  it. 

The  plaintiff  obtained  a  verdict;  and  the  defendant  moved  for  a 
new  trial  for  a  misdirection. 

HosMER,  Ch.  J.  The  enquiries  in  the  case  are,  what  constitutes  a 
legal  attachment;  and  whether  on  this  subject  the  charge  was  correct. 

1.  The  word  attach,  derived  remotely  from  the  Latin  term  attingo, 
and  more  immediately  from  the  French  attacher,  signifies  to  take  or 
touch,  and  was  adopted  as  a  precise  expression  of  the  thing;  nam  qui 
nomina  intelligit,  res  eliam  intelligit. 

The  only  object  of  attachment  is  to  take  out  of  the  defendant's 
possession,  and  to  transfer  into  the  custody  of  the  law,  acting  through 
its  legal  officer,  the  goods  attached,  that  they  may,  if  necessary,  be 
seized  in  execution,  and  be  disposed  of  and  delivered  to  the  pur- 
chaser. From  both  these  considerations  it  is  apparent  that  to 
attach  is  to  take  the  actual  possession  of  property.  Hence,  the  legal 
doctrine  is  firmly  established  that  to  constitute  an  attachment  of 
goods  the  officer  must  have  the  actual  possession  and  custody.  It  was 
laid  down  in  these  express  words,  by  Ch.  J.  Parsons,  in  Lane  et  al.  v. 
Jackson,  5  Mass.  Rep.  157,  163,  and  by  Ch.  J.  Parker,  in  Train  v. 
Wellington,  12  Mass.  Rep.  495,  497.  Nor  is  there,  so  far  as  my  in- 
vestigations have  enabled  me  to  discover,  a  single  determination 
opposed  to  the  preceding  principle. 

The  case  of  Turner  v.  Austin,  16  Mass.  Rep.  181,  decided  that  no 
overt  act  by  the  sheriff  was  necessary  to  constitute  an  attachment  of 
property,  previously  in  his  custody  on  another  attachment.  But  this 
is  entirely  consistent  with  the  principle  advanced.  The  sheriff  al- 
ready had  the  actual  custody;  and  mere  form  or  ceremonj', /or /orm's 
sake,  and  not  for  the  preservation  of  substance,  can  never  be  re- 
quired. 

It  was  likewise  adjudged  in  Denny  v.  Warren,  16  Mass.  Rep.  420, 
that  an  officer,  who  entered  a  store  to  attach  goods,  where  there  was 
no  competition,  received  the  key  from  the  clerk,  and  locked  up  the 
store,  having  declared  his  intention  to  attach,  had  made  a  sufficient 


12  HOLLISTER    V.    GOODALE.  [CHAP.  I. 

.attachment.  And  in  Gordon  v.  Jenny,  16  Mass.  Rep.  465,  the  deter- 
mination was  to  the  same  effect. 

So  in  Naylor  v.  Dennie,  8  Pick.  198,  it  was  decided  that  inacces- 
sible goods,  covered  up  in  the  hold  of  a  ship,  were  attached,  by  the 
officer's  going  on  board,  and  leaving  a  keeper  to  take  care  of  them; 
and  in  Merrill  v.  Sawyer,  8  Pick.  397,  that  hay  in  a  barn  was  duly 
attached,  by  putting  a  notification  of  the  attachment  on  the  barn 
door. 

Now,  in  all  these  cases,  the  court  went  on  the  principle,  that  the 
ictual  possession  and  custody  was  necessary  to  constitute  an  attach- 
ment ;  although  there  being  no  race  for  priority  of  attachment,  they 
held  that  to  be  the  actual  custody  and  possession,  which,  perhaps, 
was  constructive  possession  only. 

The  analogous  cases  all  demonstrate  the  necessity  of  actually  tak- 
ing the  property.  This  is  the  established  law  concerning  the  le\'y  of 
executions;  that  is,  the  property  levied  on  is  actually  taken  into  the 
custody  of  the  law.  So  when  an  attachment  or  execution  is  levied  on 
the  body,  it  is  effected  by  a  corporal  seizing  or  touching  of  the  body, 
and  thus  putting  it  in  the  custody  of  the  law  (3  Bla.  Comm.  288) ;  or 
by  what  is  tantamount,  a  power  of  taking  possession  and  the  party's 
submission  thereto.  Genner  v.  Sparkes,  1  Salk.  79 ;  Horner  v.  Battyn, 
Bui.  N.  P.  62.  But  if  the  person  do  not  submit  (and  this  dead  prop- 
erty cannot  do) ,  the  body  must  actually  be  seized. 

2.  The  question  now  arises,  in  view  of  the  preceding  facts  and 
principles,  whether  the  charge  to  the  jury  was  correct. 

That  the  plaintiff  was  at  the  door  of  the  carriage-house,  with  a 
writ  of  attachment  in  his  hand,  only  proves  his  intention  to  attach. 
To  this  no  accession  is  made,  by  the  lawful  possession  of  the  key  and 
the  unlocking  of  the  door.  Suppose  what  does  not  appear,  that  the 
key  was  delivered  to  him,  hy  the  owner  of  the  barouche,  that  he 
might  attach  the  property;  this  would  be  of  no  amount.  He  might 
have  the  constructive  possession,  which,  on  a  sale,  as  between  vendor 
and  vendee,  would  be  sufficient;  but  an  attachment  can  only  be 
made  by  the  taking  of  actual  possession.  As  little  importance  is 
attached  to  the  unlocking  of  the  door,  and  the  declaration  that  the 
plaintiff  attached  the  carriage.  This  was  not  the  touching  of  the 
property,  or  the  taking  of  the  actual  possession.  The  removal  of  an 
obstacle  from  the  way  of  attaching,  as  the  opening  of  the  door,  is  not 
an  attachment,  nor  was  the  verbal  declaration.  An  attachment  is  an 
act  done;  and  not  a  mere  oral  annunciation.  From  these  various 
acts,  taken  separately  or  conjointly,  the  plaintiff  did  not  obtain  the 
possession  and  custody  of  the  barouche,  and  therefore  he  did  not 
attach  the  property. 

On  the  contrar}',  if  the  facts  contended  for,  by  the  defendant,  were 
proved,  his  defence  was  complete.  Between  two  officers  having 
separate  attachments,  there  was  a  race  for  priority.  They  both  had 


SECT.  I.]  HUNTINGTON    V.    BLAISDELL.  IS 

arrived  at  the  carriage-house;  and,  as  soon  as  the  door  was  opened, 
the  defendant  outstripped  his  competitor,  and  seized  on  the  barouche. 
By  this  act,  he  had  the  actual  possession,  and  was  successful  in  his 
intended  prior  attachment. 

I  would,  therefore,  advise  a  new  trial  of  the  cause. 

Daggett  and  Williams,  Js.,  were  of  the  same  opinion. 

Peters,  J.,  was  also  inclined  to  concur,  though  he  was  not  quite 
satisfied  that  the  charge  was  wrong. 

BissELL,  J.,  was  absent. 

New  trial  to  he  granted. 


HUNTINGTON  v.  BLAISDELL. 

2  N.H.  317.   1820. 

This  was  trespass  de  bonis  asportatis  for  a  quantity  of  household 
furniture.  The  defendants  pleaded,  first,  not  guilty;  and,  secondly, 
that  Blaisdell,  as  a  deputy  sheriff,  and  the  other  defendants,  as  hw 
assistants,  took  and  removed  the  furniture  as  the  property  of  one 
Luther  Delano,  against  whom  Blaisdell  had  a  writ  of  attachment  in 
favor  of  Josiah  Barnes.  The  plaintiff  joined  the  general  issue,  and  to 
the  special  plea  replied,  that  the  title  to  the  furniture  at  the  time  of 
the  removal  was  in  him  and  not  in  Delano. 

On  the  trial  here  in  November,  a.d.  1819,  it  appeared  in  evidence, 
that  both  of  the  principal  parties  in  this  case  were  deputy  sheriffs; 
that,  on  the  day  of  the  alleged  trespass,  each,  having  precepts  against 
Delano,  rode  with  considerable  speed  towards  his  house;  that  the 
plaintiff  first  obtained  admission  into  it;  and  then  gave  notice  that 
he  attached  all  the  furniture  therein;  that  he  immediately  laid  hi.', 
hands  on  some  of  it,  and  proceeded  to  make  out  an  inventory  of  the 
whole;  that  while  thus  engaged,  not  having  locked  the  doors 'of  the 
house,  Blaisdell  entered,  and  before  Huntington  had  reached  a 
chamber  where  was  the  property  named  in  the  writ,  proceeded  to 
take  and  remove  from  that  chamber,  by  virtue  of  the  precepts  in  his 
possession,  all  the  articles  described. 

There  was  some  evidence,  however,  that  one  bed  was  taken  by 
Blaisdell  from  a  different  apartment,  and  the  fact  as  to  which  person 
first  entered  the  chamber  being  questioned,  it  was  submitted  to  the 
jury  and  found  for  the  defendants. 

A  general  verdict  was  then,  by  consent,  taken  for  the  plaintiff  for 
the  value  of  the  furniture,  subject  to  future  consideration. 

Woodbury,  J.  If  a  sheriff  makes  a  valid  attachment  of  property, 
he  certainly  acquires  such  an  interest  in  it  as  to  be  able  to  maintain 
trespass  against  one  who  removes  it  from  his  possession  Poole  v. 
Symonds,  1  N  H.  Rep.  289. 


14  HUNTINGTON    V.    BLAISDELL.  [CHAP.  I. 

In  this  case  then,  the  only  difficulty  is  to  determine  whether  Hun- 
tington, at  the  time  when  this  property  was  removed  by  the  defend- 
ants, had  made  such  an  attachment  of  it.  To  constitute  a  valid 
attachment  it  is  contended  that  the  articles  must  be  actually  touched 
or  handled  by  the  officer.  It  cannot  be  questioned,  that  to  constitute 
an  arrest  of  the  body,  some  part  of  the  officer  must  come  in  actual 
contact  with  some  part  of  the  person  who  is  arrested.  iSalk.  "Arrest." 

It  is  not  sufficient  to  be  in  sight  or  hearing.  An  attachment  of 
property  is  an  arrest,  or  seizure,  or  taking  of  it;  and  consequently 
would  seem  to  be  defective,  unless  the  property  be  touched.  In  this 
case,  it  is  not  necessary  to  deny  the  premises,  nor  to  attack  the  anal- 
ogy between  an  arrest  and  an  attachment.  The  merits  of  this  case  lie 
in  the  principle,  that  articles  of  property  from  their  number  and 
nature  can  be  taken  or  delivered  without  an  actual  touching  or 
removing  of  every  distinct  article. 

Thus,  in  respect  to  real  estate,  the  delivery  of  seisin  or  possession 
is  by  touching  only  a  handle  of  the  door,  or  a  twig  or  the  turf  of  the 
land.  An  attachment  of  land,  or  a  pew  in  a  church,  may  now  be 
effected  in  the  same  way.    13  Mass.  Rep.  123. 

In  respect  to  personal  estate,  when  sold,  a  delivery  of  a  sample  is  a 
delivery  of  the  whole ;  and  touching  a  part  as  for  the  whole,  or  taking 
into  actual  custody  a  building,  or  the  key  of  it,  so  as  to  have  the 
whole  contents  under  one's  control,  is  a  receipt,  or  taking  of  the 
whole.  10  Mass.  Rep.  308;  12  ditto,  300;  1  East,  192;  7  ditto,  558; 
Willes  et  at.  v.  Ferris,  5  John.  344.  So,  "if  a  landlord  comes  into  a 
house  and  seizes  upon  some  goods  as  a  distress  in  the  name  of  all  the 
goods  in  the  house,  that  is  a  sufficient  seizure  of  all."  Bac.  Ab.  "  Dis- 
tress "  D.  An  attachment  of  personal  estate  can  therefore  be  effected 
in  the  same  way.  The  whole  articles  must  doubtless  be  -VNithin  the 
power  of  the  officer.  16  John.  288;  Haggertyv.  Wilier,  13  Mass.  Rep. 
116.  That  is,  they  must  not  be  inaccessible  to  him  by  their  distance, 
or,  by  being  locked  up  from  his  reach  in  an  apartment  not  under  his 
control;  or  by  being  so  covered  with  other  articles,  or  so  in  the  cus- 
tody of  another  person,  that  the  officer  cannot  see  and  touch  them. 
Mass.  Rep.  157,  163,  271.  The  officer  must  also  continue  to  retain 
this  power  over  them,  by  remaining  present  himself,  by  appointing  an 
agent  in  his  absence,  by  inventorying  and  marking  them,  or  by  a 
seasonable  removal  of  them.  9  John.  132-3;  16  ditto,  288;  Bradley  v. 
Windham.,  1  Wils.  44;  12  Mass.  Rep.  131,  495;  14  ditto,  190,  356;  15 
John.  428.  The  law  in  respect  to  a  distress  for  rent  is  somewhat 
analogous.   Str.  717;  2  Ld.  R.  1424;  2  Dall.  67. 

In  the  present  case,  the  articles  were  all  within  one  house;  the 
plaintiff  first  entered  that  house  and  touched  some  of  the  furniture 
and  gave  notice  that  he  attached  the  whole;  he  then  proceeded  to 
inventory  the  whole;  remained  within  the  house  and  could  have 
closed  the  doors  if  wishing  to  be  absent.   He,  therefore,  had  control 


SECT.  I.]  DENNY    V.    WARREN.  -^^ 

over  the  whole  and  retained  that  control  till  the  defendants  entered 
and  by  force  divested  him  of  it.  i  x         4.  u 

Consequently  the  attachment  was  valid,  and  judgment  must  be 
entered  on  the  verdict. 


DENNY  V.  WARREN. 

16  Mass.   420.   1820. 

This  was  an  action  of  trover,  to  recover  the  value  of  certain  goods 
mentioned  in  the  declaration;  and  was  tried  upon  the  general  issue, 
at  the  last  April  term  in  this  county,  before  Wilde,  J. 

On  the  part  of  the  plaintiff,  a  deputy  sheriff  of  this  county,  it  was 
in  evidence,  that  on  Saturday  the  28th  of  November,  1818,  there  was 
delivered  to  him  a  writ  of  attachment  in  favor  of  one  Samuel  Kettle 
against  one  Aaron  Morse,  with  directions  to  secure  the  demand 
declared  in  the  writ:  that  he  went  to  the  store  of  Morse,  who  was  a 
trader  in  Worcester,  about  two  o'clock  in  the  afternoon  of  said  day; 
that  he  continued  there  until  sunset,  Morse  being  absent,  and  a 
number  of  people  being  collected.  The  business  of  the  store  was  con- 
ducted by  one  Whiting,  clerk  to  Morse.  In  the  course  of  the  after- 
noon the  plaintiff  informed  a  person,  who  was  a  witness  at  the  trial, 
that  he  had  a  writ  against  Morse,  and  had  attached,  or  was  about 
attaching,  all  the  goods  in  the  store.  The  witness  observed  to  him 
that  it  would  be  a  pity  to  remove  the  goods,  and  that,  as  he  was  going 
to  the  place  whither  Morse  was  gone,  he  should  probably  meet  him, 
and  would  inform  him  of  the  plaintiff's  business;  adding  that  Morse 
might  procure  a  receiptor  for  the  goods.  The  plaintiff  remained  at 
the  store  until  after  sunset,  the  said  Whiting  continuing  to  sell  goods, 
as  they  were  called  for,  through  the  afternoon;  the  plaintiff  observing 
to  him  about  sunset,  that  if  he  sold  much  more,  there  would  not  be 
enough  left  for  him.  Whiting  locked  the  store  before  it  was  dark,  and 
delivered  the  key  to  the  plaintiff,  who  immediately  left  the  place; 
Morse  returning  about  fifteen  minutes  after.  _ 

The  defendant  was  also  a  deputy  sheriff,  and  claimed  the  goods  m 
virtue  of  an  attachment  of  them  upon  a  writ  in  favor  of  one  Barber 
against  the  said  Morse.  On  the  defendant's  part,  it  was  proved  that, 
early  in  the  morning  of  Monday,  the  30th  of  November,  he  went  to 
Morse's  house,  and  made  knowTi  his  business,  an  agent  of  Barber 
being  with  him,  and  that  Morse  showed  the  defendant  the  goods  m 
question,  who  attached  and  removed  them,  a  part  of  them  having 
been  removed  into  another  building  than  the  store.  The  defendant 
knew  nothing  of  the  plaintiff's  doings,  but  Barber's  agent  was 

knowing  thereto.  i  •  +•«: 

The  defendant  objected  that  the  attachment  made  by  the  plaintitt 


16  DENNY   V.    WARREN.  [CHAP.  I. 

was  not  valid,  because  he  did  not  remove  the  goods  from  the  store; 
and  that  he  had  sufficient  opportunity  to  have  done  it  on  the  28th,  if 
he  had  not  waited  for  Morse's  return,  as  before  stated. 

The  jury  were  however  instructed,  that  the  attachment  made  by 
the  plaintiff  must  be  considered  valid  in  law,  if  they  believed  his 
return  thereof  upon  the  writ  to  be  true ;  and  that  the  delivery  of  the 
key  of  the  store,  under  the  circumstances  of  the  case,  was  equivalent 
to  a  removal  of  the  goods,  and  vested  a  special  property  in  them  in 
the  plaintiff.  The  defendant  objected  to  this  instruction,  and  if  the 
objection  was  well  founded,  in  the  opinion  of  the  court,  the  verdict 
for  the  plaintiff  was  to  be  set  aside,  and  a  new  trial  granted,  or  the 
plaintiff  become  nonsuit,  as  the  court  should  direct.  Otherwise  judg- 
ment was  to  be  entered  upon  the  verdict. 

Parker,  C.  J.  The  plaintiff  having  been  in  the  store,  within  view 
of  the  goods,  and  with  the  power  to  remove  them,  must  be  considered 
as  having  attached  them;  he  having  a  writ  for  that  purpose,  and 
declaring  his  intention,  but  suspending  the  removal  of  them  for  the 
convenience  of  the  debtor.  In  this  situation,  the  delivery  of  the  key 
to  him  by  the  clerk  was  the  same  as  if  it  had  been  delivered  by  the 
debtor  himself;  for,  in  his  absence,  the  acts  of  the  clerk  for  the  benefit 
of  the  master  ought  to  be  construed  the  acts  of  the  latter. 

When  the  defendant .  took  possession  of  the  goods,  they  were 
already  in  the  custody  of  the  law;  and  although  no  keeper  was  placed 
over  them,  yet  the  possession  of  the  first  attaching  officer  could  not 
be  lawfully  disturbed  by  any  one  knowing  that  an  attachment  had 
taken  place. 

If  negligence,  or  a  voluntary  abandonment  of  the  attachment,  had 
appeared,  the  case  would  be  different.  But  the  goods  were  locked  up 
on  Saturday  night,  and,  for  aught  appearing,  the  plaintiff  would 
have  taken  them  into  his  actual  possession  early  on  Monday  morn- 
ing; but  was  prevented  by  the  act  of  the  defendant.  This  act,  al- 
though, perhaps,  justifiable  without  knowledge  of  what  had  been 
before  done,  could  not  be  so  with  the  knowledge  which  the  agent  of 
the  plaintiff  in  the  second  action  had  of  the  past  proceedings. 

The  case  shows  collusion  between  the  debtor  and  the  second 
attaching  creditor,  to  defeat  the  first  attachment;  and,  although 
fraud  has  not  been  directly  found  by  the  jury,  they  have  found  facts 
which  render  the  inference  of  fraud  necessary.  The  defendant  could 
not  have  entered  the  store  without  the  assistance  of  the  debtor;  and 
some  of  the  goods  had  been  removed  from  the  store,  he  knowing  of 
the  attachment.  Upon  the  whole  case,  we  think  the  verdict  is  well 
maintained  by  the  evidence. 

Judgment  on  the  verdict. 

Note.  —  In  Merrill  v.  Sawyer,  8  Pick.  (Mass.)  397,  the  court  said: 
"The  attachment  made  by  the  plaintiff   on   Saturday  was  valid. 


SECT  I.J  RIX    r.    SILKNITTER.  17 

...  He  went  within  view  of  the  hay  with  his  writ,  declared  that  he 
attached  it,  and  posted  a  notification  to  that  effect  on  the  barn-door. 
There  was  then  no  person  present  claiming  the  possession  of  the 
hay."  And  see  Corniff  v.  Cook,  95  Ga.  61,  65. 

In  Fountain  v.  624  Pieces  of  Timber,  140  Fed.  Rep.  381,  the  court 
said:  "The  undisputed  evidence  shows  that  the  deputy  sheriff,  who 
had  the  attachment  in  hand  for  execution,  made  no  valid  levy  on  the 
timber.  It  was  in  a  raft  moored  in  a  public  boom,  of  which  Gaines 
Fountain  was  the  proprietor  or  manager.  The  deputy  sheriff,  in  com- 
pany with  said  Fountain,  approached  the  raft  in  a  boat,  and  came 
within  some  60  feet  of  it,  when,  it  being  pointed  out  by  Fountain 
among  other  rafts,  the  deputy  sheriff  viewed  it.  He  did  not  go  on  to 
it,  or  then  ascertain  the  exact  number  of  pieces  of  timber  there  was 
in  the  raft;  but  he  informed  Fountain  that  he  had  the  attachment, 
and  engaged  Fountain  to  count  the  exact  number  of  pieces  of  timber 
there  were  in  the  raft  and  to  report  the  same  to  him,  which  was  sub- 
sequently done."  And  see  Adler  v.  Roth,  5  Fed.  Rep.  895;  Libhy  v. 
Murray,  51  Wis.  371. 


RIX  V.  SILKNITTER. 

57  Iowa,  262.    1881. 

Day,  J.  The  execution  under  which  the  defendant  acted  is  in  due 
form.  The  only  question  involved  pertains  to  the  sufficiency  of  the 
levy.  The  evidence  is  not  contained  in  the  abstract  and  the  case 
must  be  determined  upon  the  facts  as  found  by  the  court. 

The  court  submitted  a  finding  of  facts  and  of  legal  conclusions 

substantially  as  follows:  "That  on  the day  of 1879, 

in  company  with  M.  H.  Kirkham,  of  the  firm  of  Drake  &  Kirkham, 
execution  plaintiffs,  the  defendant  went  to  the  foundry  of  the  execu- 
tion defendants,  which  was  at  the  time  being  invoiced  to  be  turned 
over  to  the  Centerville  Foundry  Company;  that  the  said  Kirkham 
directed  the  defendant,  w^ho  was  sheriff  of  Apanoose  County,  Iowa, 
and  held  the  execution  as  sheriff  aforesaid,  to  levy  on  the  execution 
defendant's  property,  situated  in  and  about  the  foundry,  including 
the  patterns  in  dispute;  that  the  execution  defendant,  B.  A.  Ogle, 
of  said  firm  of  Gilman  &  Ogle,  was  present  when  the  sheriff  com- 
menced to  make  such  levy,  and  was  informed  by  the  sheriff  that  he 
had  the  writ,  and  that  he  levied  on  the  property  and  was  proceeding 
to  and  was  le\n,^ing  the  writ  while  said  defendant  was  present,  but 
the  defendant  left  before  the  levying  was  completed,  directing  one  of 
his  hands  to  assist  him  in  handling  the  property  and  examining  it, 
and  turning  his  hand  over  to  the  sheriff's  direction;  that  the  de- 
fendant undertook  to  levy  on  all  the  patterns  in  said  foundry,  and 


18  RIX    V.    SILKNITTER.  [CHAP,  I. 

belonging  to  said  foundry,  which  included  a  large  number  of  patterns 
situated  in  a  building  on  the  premises,  but  separated  and  distant 
from  fifty  to  one  hundred  feet  from  the  main  building,  which  was 
locked,  the  key  in  the  possession  of  the  said  Ogle  aforesaid ;  that  the 
sheriff  did  not  open  this  house  and  take  actual  possession  of  the  pat- 
terns, in  this  out  building,  but  took  possession  and  control  of  all  the 
other  goods  in  and  about  the  foundry  mentioned  in  the  return  on  the 
writ,  and  assumed  to  take  possession  and  control  of  the  patterns  in 
the  out  building  aforesaid,  and  that  he  then  told  W.  S.  Johnson,  a 
member  of  the  company  to  whom  the  premises  were  being  turned 
over  and  invoiced  as  aforesaid,  who  wrote  and  took  the  acknowledg- 
ment of  the  mortgage  of  plaintiffs,  that  he  would  not  remove  the 
patterns  and  the  goods  levied  upon,  mentioning  the  same  and  includ- 
ing the  patterns  and  all  the  patterns  belonging  to  the  foundry,  which 
included  the  patterns  in  said  out  building,  if  he  would  hold  the  same 
and  be  responsilDle  for  them,  otherwise  he  would  remove  them.  And 
the  said  Johnson  agreed  to  be  responsible  for  the  same  and  they  were 
accordingly  left  in  his  control  and  care. 

"  That  the  actual  possession  of  said  out  building  was  not  at  this 
time  turned  over  to  the  said  W.  S.  Johnson  or  the  company  of  which 
he  was  a  member,  but  he  was  in  possession  of  the  balance  of  the 
premises  actually;  that  the  patterns  aforesaid  were  of  the  actual 
value  of  fifteen  hundred  dollars.  That  the  aforesaid  facts  constitute 
a  legal  and  valid  levy  upon  all  the  property  mentioned  in  said  return, 
including  the  patterns  situated  in  said  out  building;  that  on  the  same 
day  but  after  the  levy  aforesaid,  the  said  Oilman  &  Ogle  executed 
and  duly  acknowledged  the  chattel  mortgage  set  forth  in  the  plead- 
ing to  secure  the  debt  therein  named,  which  remains  wholly  unpaid, 
and  that  there  is  due  thereon  the  amount  set  forth  therein,  as  evi- 
denced by  the  note  described  therein,  to  wit,  the  sum  of 

dollars ;  and  the  court  finds  said  mortgage  was  duly  filed,  indexed  and 
recorded  on  the  day  after  the  date  thereof,  as  shown  by  the  mort- 
gage, and  that  the  mortgagors  on  that  day  \\Tote  the  plaintiffs  of 
the  execution  thereof  at  Keokuk,  where  they  resided,  and  the  plaintiffs 
replied  thereto  on  the  next  day,  when  it  was  received,  accepting  the 
mortgage,  but  that  all  this,  including  the  execution  and  recording 
of  the  mortgage,  occurred  after  the  aforesaid  levy;  that  the  defend- 
ant never  was  in  said  out  buildings  where  the  patterns  were  stored 
as  aforesaid  and  never  handled  the  same  until  the  day  of  the  sale, 
and  on  that  day  the  building  was  opened  and  the  property  exposed 
to  sale  by  the  sheriff  and  sold  by  him,  but  not  disturbed  or  removed 
by  him  other  than  in  causing  the  opening  of  the  building  for  the 
purpose  of  examination  and  sale,  and  in  selling  the  same." 

The  evidence  is  silent  as  to  what  W.  S.  Johnson  did  with  the  prop- 
erty while  he  held  it  for  the  sheriff.  The  court  erred  we  think  in 
holding  that  the  facts  found  constituted  a  valid  le\y  upon  the 


SECT.  I.]  RIX  V.  SILKNITTER.  19 

property  in  controversy.  In  order  to  make  a  legal  and  valid  levy  the 
officer  must  do  such  acts  as  that,  but  for  the  protection  of  the  writ  he 
would  be  liable  in  trespass  therefor.  Rorer  on  Judicial  Sales,  section 
1003,  and  cases  cited.  Quackenbush  v.  Henry,  (Mich.)  9  Rep.,  p.  120; 
Allen  V.  McCalla,  25  Iowa,  464,  and  authorities  cited.  ''The  le\'y 
must  be  so  made  that  it  identifies  or  gives  the  means  of  identifying 
what  is  levied  on,  so  that  any  property  levied  on  cannot  be  subse- 
quently claimed.  It  must  be  seized  manually  or  by  assertion  of  con- 
trol that  may  be  made  effectual,  if  necessary,  and  thus  to  bring  and 
keep  it  within  the  dominion  of  the  law  for  sale  on  execution,  if 
needed,  and  for  no  other  purpose."  Quackenbush  v.  Henry,  9  Rep. 
120.  "  A  mere  paper  levy  is  void.  The  officer  should  take  actual  pos- 
session, but  removal  of  the  goods  is  not  absolutely  necessary;  yet 
there  must  be  actual  control  and  view  of  the  property  with  power  of 
removal."  Rorer  on  Judicial  Sales,  section  1002.  See  also  section 
1005,  and  Haggerty  v.  Wilber,  16  Johns.  287. 

While  the  patterns  remained  locked  in  the  building  and  the  key 
continued  in  the  possession  of  the  o^Tier,  they  were  not  subject  to  the 
actual  control  of  the  officer,  nor  had  he  the  power  of  removal.  It  is 
true  the  officer  had  the  physical  power  to  break  open  the  building 
and  assume  control  of  the  property.  But  in  doing  so  he  would  of 
necessity  materially  change  his  situation  respecting  the  property. 
Control  and  power  of  removal  is  a  very  different  thing  from  the  abil- 
ity to  assume  control  and  the  power  of  removal. 

If  the  officer  had  been  a  mile  away  from  the  property,  it  could  not 
be  said  that  the  property  was  under  his  control  and  subject  to  his 
power  of  removal,  and  yet  he  would  have  possessed  the  same  physical 
power  of  putting  himself  in  a  condition  to  assume  actual  control  and 
the  power  of  removal  as  in  the  present  case. 

We  feel  that  to  hold  a  valid  levy  upon  personal  property  may  be 
made,  as  was  attempted  in  this  case,  would  be  adopting  too  loose  a 
rule.  We  are  asked  to  render  such  judgment  here,  upon  the  facts 
found,  as  the  court  below  should  have  done.  The  amount  due  upon 
the  chattel  mortgage  is  not  found,  and  hence  we  have  no  data  for  the 
rendition  of  final  judgment.  The  cause  must  be  remanded  to  the 
court  below. 

Reversed. 

Note.  — See,  accord,  Meyer  v.  Missouri  Glass  Company,  65  Ark. 
286;  Taffts  v.  Manlove,  14  Cal.  47. 

In  Lane  v.  Jackson,  5  Mass.  157,  the  facts  were  as  follows:  A  ship 
arrived  at  Boston,  having  on  board  goods,  packed  in  a  trunk,  con- 
signed to  A.  The  defendant,  a  deputy  sheriff,  went  on  board  the  ship, 
and  demanded  the  goods  from  the  mate,  who  answered  that  they 
were  below  and  could  not  be  got  at,  as  the  hatches  had  not  been 
opened.    The  defendant  directed  the  mate  in  writing  to  take  posses- 


20  EVANS    V.    HIGDON.  [CHAP.  I. 

sion  for  him  of  all  the  goods  A  had  on  board,  as  soon  as  they  could 
be  come  at,  and  the  mate  agreed  to  do  so.  The  court  was  of  opinion 
that  these  acts,  without  more,  did  not  constitute  an  attachment. 


EVANS  V.   HIGDON. 

1  Baxter  (Tenn.),  245.   1872. 

McFarland,  Judge,  delivered  the  opinion  of  the  court. 

This  is  an  action  of  replevin  by  Higdon,  to  recover  a  mule,  upon 
the  following  facts:  The  mule  belonged  to  Clements,  who  had  been 
renting  a  farm  from  Colonel  Gordon.  He  absconded,  leaving  the 
mule  upon  Gordon's  farm.  Rankin  and  others  sued  out  an  attach- 
ment from  a  Justice  of  the  Peace.  Higdon  was  deputed  to  execute  the 
process.  He  went  in  company  with  Rankin  to  Colonel  Gordon's 
farm.  They  inquired  of  Mrs.  Gordon  if  Clement  had  a  mule  there; 
she  told  them  he  did  —  that  it  was  in  the  bam.  The  witnesses  differ 
as  to  the  details,  but  agree  in  substance.  The  mule  was  described  to 
them  by  Mrs.  Gordon,  so  they  could  distinguish  it  from  other  mules 
of  Colonel  Gordon's,  that  were  in  the  barn.  The  barn  was  locked, 
and  the  key  at  the  time  in  the  possession  of  a  black  boy  hired  at  the 
place,  and  under  the  control  of  Mrs.  Gordon,  her  husband  being  sick 
at  the  time.  Mrs.  Gordon  proposed  to  get  the  key  for  Higdon  and 
Rankin,  but  they  decided  it  was  not  necessary.  They  went  to  the 
barn,  some  two  hundred  yards  off;  they  could  see  through  the  cracks, 
and  picked  out  the  mule  from  the  others,  and  in  the  language  of  the 
witness,  made  the  levy.  But  whether  the  endorsement  was  made  on 
the  attachment  then,  or  when  they  returned  to  the  village  of  Ljim- 
\^lle,  is  not  certain.  The  stable-door  was  not  unlocked,  and  they  did 
not  take  actual  possession  of  the  mule.  They  informed  Mrs.  Gordon 
of  what  they  had  done,  and  requested  her  to  keep  the  mule  for  Hig- 
don, which  she  agreed  to  do.  They  then  left,  and  in  a  few  minutes 
another  special  deputy  came  with  another  attachment  against  Clem- 
ent —  levied  upon  the  mule,  and  took  possession  of  it,  getting  the 
key  from  the  boy  Peter.  They  placed  the  mule  in  the  possession  of 
Evans.  These  are,  in  substance,  the  facts  upon  which  Higdon's  title 
is  predicated.  A  levy  by  an  officer  which  will  vest  the  title  of  personal 
property  in  him,  does  not  consist  in  wTiting  out  the  levy  on  the  pro- 
cess. He  must  take  possession  of  the  property  either  actually,  or  do 
something  which  amounts  to  the  same  thing.  The  Judge  told  the 
jury  that  manual  possession  was  ordinarily  necessary,  but  if  the 
property  at  the  time  was  in  the  power  of  the  officer,  so  he  could  have 
taken  possession  of  it,  but  was  in  the  possession  of  a  third  party,  who 
agreed  to  hold  it  for  the  officer,  this  would  be  sufficient.  Assuming 
this  to  be  correct,  as  an  abstract  proposition,  we  think  the  evidence 


SECT.  I.]  ELLIOTT    V.    BOWMAN.  21 

does  not  sustain  the  verdict.  We  do  not  understand  that  Mrs.  Gor- 
don was  in  possession  of  the  mule;  it  was  in  her  husband's  barn,  and 
she  might  have  controlled  the  boy  Peter,  who  had  the  keys  at  the 
time;  but  neither  in  law  or  in  fact  do  we  think  she  was  in  possession. 
The  proposition  of  the  Judge,  as  applied  to  these  facts,  must  have 
misled  the  jury,  and  renders,  we  think,  the  proposition  erroneous. 
Actual  possession,  or  that  which  amounts  to  it  is  necessary  to  vest 
the  property  in  the  officer. 

Reverse  the  judgment. 


'  ELLIOTT  V.  BOWMAN. 

17  Mo.  App.  693.    1885. 

A  DEPUTY  sheriff  levied  upon  a  safe,  declaring  that  he  levied  upon 
the  safe  and  its  contents.  The  safe  was  locked  by  means  of  a  combi- 
nation lock,  the  numbers  of  which  were  unknoiNm  to  the  sheriff,  and 
he  required  the  aid  of  an  expert  locksmith  to  open  the  safe.  The 
owner  refused  to  open  the  safe  or  disclose  the  combination.  After  the 
safe  was  seized,  but  before  it  was  opened,  the  owner  made  an  assign- 
ment for  the  benefit  of  creditors.   The  court  said  (p.  697) :  — 

"  Upon  the  first  question  the  court  is  of  opinion  that  the  le\^  upon 
the  safe  and  contents  was  an  effectual  levy  upon  the  books  of  account 
within  the  safe  from  the  time  when  the  safe  was  actually  seized  by 
the  sheriff.  The  authorities  cited  for  the  opposing  view  go  merely  to 
the  extent  of  holding  that,  in  order  to  make  a  valid  lev;y'  upon  per- 
sonalty, the  goods  must  not  only  be  within  the  view  of  the  officer, 
but  there  must  be  an  actual  manucaption,  together  -uith  such  oral 
declarations  or  other  proceedings  as  would  fully  apprise  all  persons 
interested  of  the  extent  of  the  levy.  Douglas  v.  Orr,  58  Mo.  573; 
Newman  v.  Hook,  37  Mo.  207;  Yeldell  v.  Stemmons,  15  Mo.  443; 
Sams  V.  Armstrong,  8  Mo.  App.  573.  This  is  in  conformity  with  the 
definition  of  the  word  '  levy '  as  used  in  our  statute  relating  to  execu- 
tions, which  'shall  be  considered  to  mean  the  actual  seizure  of 
property  by  the  officer  charged  with  the  execution  of  the  writ.'  Rev. 
Stat.  sect.  2357.  In  this  case  the  sheriff,  by  an  actual  seizure  which 
purported  to  be  a  seizure  not  only  of  the  safe  but  of  its  contents,  by 
demanding  the  combination  of  the  defendant  in  the  attachment  suit, 
and  by  making  immediate  endeavors  to  get  the  safe  open,  not  only 
placed  the  safe  and  its  contents  within  his  own  power  so  as  to  exclude 
the  power  of  all  other  persons,  but  by  the  most  unequivocal  assertion 
and  conduct  indicated  that  his  seizure  extended  to  the  contents  of 
the  safe  as  well  as  to  the  safe  itself.  The  mere  fact  that  he  did  not 
know  at  the  time  of  seizing  the  safe  what  its  contents  were  does  not 
exclude  the  conclusion  that  his  levy  was  effective  as  a  levy  upon  such 


22  KEEPERS    V.    FIDELITY    TITLE    AND    DEPOSIT    CO,       [CHAP.  I. 

contents  from  the  date  of  the  seizure.  The  contrary  conclusion  would 
be  no  more  absurd  than  to  hold  that  where  an  officer  levies  upon  a 
quantity  of  goods  in  bales  or  boxes,  without  knowing  the  nature  of 
the  goods,  his  levy  is  not  effective  until  he  has  had  time  to  break  the 
packages  and  expose  the  separate  pieces  of  goods  contained  in  them 
to  his  view." 


KEEPERS  V.  FIDELITY  TITLE  AND  DEPOSIT  CO. 

56  N.  J.  L.  302.    1893. 

On  error  to  the  Supreme  Court. 

The  plaintiff,  Lillie  A.  Keepers,  brought  two  suits  in  the  Supreme 
Court  against  the  Fidelity  Title  and  Deposit  Company,  one  an  action 
on  contract,  to  recover  $418.22,  the  balance  of  $970,  which  had  been 
deposited  in  the  Howard  Savings  Institution  by  and  in  the  name  of 
Minnie  I.  Munn,  and  the  other  an  action  of  replevin,  to  obtain  pos- 
session of  stock  certificate  No.  2459,  for  forty-one  shares  of  the  capi- 
tal stock  of  the  American  Insurance  Company,  a  bond  made  by  the 
plaintiff  to  Minnie  I.  Munn  for  $1000,  and  a  bond  made  by  John 
Bernreuther  to  James  T.  VanNess  for  $400,  which  had  been  assigned 
to  Minnie  I.  Munn. 

On  the  trial  of  these  suits  in  the  Essex  Circuit,  it  appeared  that  all 
the  things  in  controversy  had  belonged  to  the  plaintiff's  sister,  Min- 
nie I.  Munn,  and  the  plaintiff  testified  that  her  sister,  while  upon  her 
deathbed  at  home,  a  few  hours  before  she  lapsed  into  final  uncon- 
sciousness, sent  for  the  plaintiff,  who  lived  elsewhere,  and  on  the 
plaintiff's  coming  into  the  room  the  following  incidents  took  place: 
"My  sister  turned  to  my  mother  and  said  'To  get  those  things  for 
her ' ;  my  mother  asked,  '  What  things? '  and  she  replied,  '  My  things 
in  the  bureau';  my  mother  then  brought  to  her  from  the  bureau 
drawer  a  handkerchief  containing  some  things,  and  then  she  asked 
my  mother  to  leave  the  room,  which  she  did;  m}^  sister  then  opened 
the  handkerchief,  and  it  contained  some  jewelrj^  and  a  little  bag; 
from  the  bag  she  took  a  tiny  key  and  said  to  me,  '  You  see  that  key ' ; 
I  said,  '  Yes ' ;  and  she  handed  it  to  me  and  said,  '  There,  that  key  I 
have  carried  in  my  bosom  until  it  is  rusty;  it  is  the  key  of  the  box, 
and  that  I  give  to  you  and  all  it  contains ' ;  then  she  took  the  hand- 
kerchief, with  the  jewelry  in  it,  and  held  the  four  corners  of  it  up  and 
passed  it  over  to  me,  saying, '  There,  I  give  you  these;  I  have  no  more 
use  for  them.' "  It  further  appeared  that  at  that  time  the  box  which 
this  key  fitted  was  in  another  room  of  the  same  house,  locked  in  a 
closet  of  which  Miss  Munn's  mother  had  the  key,  and  that  the  box 
contained  the  savings  bank  book  showing  Miss  ]\Iunn's  deposit  in 
the  Howard  Savings  Institution,  the  stock  certificate  and  the  two 


SECT.  I.]       KEEPERS    V.    FIDELITY   TITLE    AND    DEPOSIT    CO.  23 

bonds,  besides  many  other  papers,  some  of  which  did  not  belong  to 
Miss  Munn.  During  Miss  Munn's  life  the  plaintiff  did  not  ask  her 
mother  for  the  key  of  the  closet  or  make  any  attempt  to  assume  con- 
trol over  or  take  possession  of  the  box  or  its  contents,  nor  did  the  box 
and  contents  ever  come  into  her  possession,  but  they  were  taken  by 
the  defendant  company  as  the  administrator  of  Miss  Munn. 

On  these  facts  the  trial  justice  ruled  that  there  was  not  such 
a  delivery  of  the  things  in  controversy  as  was  necessary  to  make  a 
valid  donatio  mortis  causa. 

Dixon,  J.  The  first  question  for  solution  is  whether  the  delivery 
of  the  key  of  a  box  containing  valuable  papers  is  sufl&cient  delivery 
to  constitute  a  valid  donatio  mortis  causa  of  the  papers,  when  the  box 
is  not  in  the  presence  or  immediate  control  of  the  donor  and  does  not 
pass  into  the  actual  possession  of  the  donee  during  the  lifetime  of  the 
donor. 

The  leading  case  on  the  subject  of  donations  mortis  causa  is  Ward 
v.  Turner,  2  Ves.  Sr.  431  (a.d.  1752),  where  Lord  Chancellor  Hard- 
wicke  laid  down  the  rule,  with  reference  to  delivery,  which  has  ever 
since  formed  the  basis  whereon  such  gifts  are  supported.  After  show- 
ing that  the  recognition  of  donations  mortis  causa  by  the  common 
law  was  derived  from  the  civil  law,  he  declared  that  the  civil  law  had 
been  ''received  in  England,  in  respect  of  such  donations,  only  so  far 
as  attended  with  delivery,  or  what  the  civil  law  calls  tradition";  that 
"tradition  or  delivery  is  necessary  to  make  a  good  donation  mortis 
causa."  He  further  said:  "It  is  argued  that,  though  some  delivery  is 
necessary,  yet  delivery  of  the  thing  is  not  necessary,  but  delivery  of 
anything  by  way  of  a  symbol  is  sufficient;  but  I  cannot  agree  to  that, 
nor  do  I  find  any  authority  for  that  in  the  civil  law,  which  required 
delivery  in  some  gifts,  or  in  the  law  of  England,  which  required 
delivery  throughout.  Where  the  civil  law  requires  it,  they  require 
actual  tradition,  delivery  over  of  the  thing.  So  in  all  the  cases  in  this 
court,  delivery  of  the  thing  given  is  relied  on,  and  not  in  the  name  of 
the  thing.  .  .  ,  Yet,"  he  added,  "n^twii^^tanding,  delivery  of  the 
key_o^bjuiIcy;.ggModSi_wliere  wines,^ e^  are  [concerned],  has  been 
allowed  as  delivery  of  the  possession,  because  it  is  the  way  of  _CQinmg 
■St'^he  possession  or  to  make  use  of  the  thing." 

Although  this  doctrine  has  received  general  approval  in  the  courts 
of  England  and  of  this  country,  yet  some  divergence  has  taken  place 
respecting  the  facts  which  may  constitute  the  delivery  required.  For 
the  purpose  of  giving  effect  to  the  difference  mentioned  by  Lord 
Hardwicke  between  articles  that  were  bulky  and  those  that  were 
not,  it  was  usually  stated  in  the  earlier  cases  that  the  delivery  must 
be  according  to  the  nature  of  the  thing  given,  such  as  the  thing  was 
reasonably  capable  of,  while  in  later  cases,  as  if  ignoring  the  ground 
of  the  distinction,  it  has  often  been  asserted  that  the  situation  as  well 
as  the  nature  of  the  thing  must  be  taken  into  consideration,  and  only 


24  KEEPERS    V.    FIDELITY    TITLE    AND    DEPOSIT    CO.       [CHAP.  I. 

such  delivery  was  requisite  as,  under  all  the  circumstances,  the  donoi 
could  conveniently  make.  On  this  footing,  it  has  in  some  instances 
been  adjudged  that  delivery  of  the  key  was  sufficient  delivery  for  a 
valid  donation  jnortis  causa  of  money  or  documents  locked  in  a  trunk 
or  other  receptacle,  not  within  the  presence  or  immediate  control  of 
the  donor,  and  not  otherwise  transferred  to  the  possession  of  the 
donee.  Cooper  v.  Burr,  45  Barb.  9;  Marsh  v.  Fuller,  18  N.H.  360; 
Jones  V.  Brown,  34  Id.  439 ;  Thomas  v.  Lewis,  89  Va.  1 ;  Phipard  v. 
Phipard,  8  N.Y.  Sup.  728;  Pink  v.  Church,  14  Id.  337. 

That  in  this  respect  these  cases  depart  from  the  view  intended  to 
be  expressed  in  the  leading  case  is,  I  think,  manifest  by  noticing  Lord 
Hardwicke's  comment  on  Jones  v.  Selby,  Prec.  Ch.  289,  and  his 
ruling  in  Smith  v.  Smith,  2  Str.  955. 

In  Jones  v.  Selby  the  donor  had  called  his  cousin,  who  was  his 
housekeeper,  and  two  of  his  servants,  and  said:  "I  give  to  my  cousin, 
Mrs.  Wetherley,  this  hair  trunk  and  all  that  is  contained  in  it,"  and 
delivered  her  the  key  thereof;  and,  on  the  strength  of  this,  Mrs. 
Wetherley  claimed  a  £500  tally  as  part  of  the  contents  of  the  trunk. 
This  claim  was  allowed  by  the  Master  of  the  Rolls  as  a  vahd  donatio 
mortis  causa,  and  would  have  been  allowed  by  Lord  Chancellor  Cow- 
PER  on  appeal,  except  for  lack  of  full  proof  that  the  tally  was  in  the 
trunk  at  the  time,  and  his  conclusion  that  the  gift  was  satisfied  by  a 
legacy  to  the  donee  given  in  a  will  subsequently  made  by  the  donor. 
On  this.  Lord  Hardwicke's  comment  was  :  "The  only  case  wherein 
such  a  symbol  seems  to  have  been  held  good  is  Jones  v.  Selby,  but  I 
am  of  opinion  that  amounted  to  the  same  thing  as  delivery  of  the 
possession  of  the  tally,  provided  it  was  in  the  trunk  at  the  time." 
He  thus  seems  to  state  that,  with  regard  to  the  tally,  the  key  was  but 
a  symbol,  the  delivery  of  which  be  had  just  declared  to  be  insufficient, 
but  that  the  circumstances  showed  a  delivery  of  the  trunk,  and  con- 
sequently of  the  tally  if  in  the  trunk. 

Smith  V.  Smith,  2  Str.  955,  was  a  ruling  at  Nisi  Prius,  where  the 
plaintiff's  intestate,  having  lodgings  in  the  defendant's  house,  had 
brought  there  furniture  and  plate,  and  had  said  that  whatever  he 
brought  into  those  lodgings  he  did  not  intend  to  take  away,  but  gave 
directly  to  defendant's  wife.  Whenever  he  went  out  of  town,  he  used 
to  leave  the  key  of  his  lodgings  with  the  defendant.  He  having  died, 
probably  out  of  town  (Bunn  v.  Markham,  7  Taunt.  224),  Lord  Hard- 
"wacKE,  then  Chief  Justice,  permitted  the  jury  to  find  a  valid  gift. 
This  ruling  accords  with  the  view  expressed  in  the  leading  case,  upon 
the  idea  that  the  things  given  were  too  bulky  for  actual  deliver}', 
otherwise  than  by  leaving  them  in  the  defendant's  house  and  giving 
him  the  key  of  the  rooms. 

The  same  distinction  is  clearly  noted  in  Hatch  v.  Atkinson,  56  Me. 
324,  and  other  cases. 

The  opinion  that  delivery  of  a  key  is  equivalent  to  the  delivery  of 


SECT.  I.]       KEEPERS    V.    FIDELITY    TITLE    AND    DEPOSIT    CO.  25 

documents  locked  up  under  the  key,  is  not  at  all  supported  by  the 
views  announced  in  such  cases  as  Hawkins  v.  Blewitt,  2  Esp.  663; 
Bunn  V.  Markham,  7  Taunt.  224,  and  Warriner  v.  Rogers,  L.  R.,  16 
Eq.  340,  where  the  retention  of  the  key  by  the  donor  was  deemed  to 
negative  the  claim  of  a  gift,  for,  to  constitute  a  gift,  there  must  be, 
besides  delivery  of  the  thing,  an  intention  to  transfer  to  the  donee 
complete  dominion  over  it,  and  the  withholding  of  the  key  proved 
that  no  such  intention  existed,  notwithstanding  the  fact  of  delivery. 

Nor  is  that  opinion,  in  its  general  form,  fully  sustained  bj'  cases 
like  Debinson  v.  Emmons,  158  Mass.  592,  where  the  receptacle  was 
in  the  immediate  presence  and  control  of  the  parties,  in  a  room 
occupied  by  the  donee  as  well  as  the  donor,  and  where  the  only 
external  sign  of  the  exclusive  possession  of  the  receptacle  was  the 
actual  possession  of  the  key.  Under  such  circumstances,  tradition  of 
the  key  might  be  considered  tantamount  to  tradition  of  the  recep- 
tacle and  its  contents,  wdthout  gi\'ing  the  same  force  to  the  tradition 
of  the  key,  when  the  receptacle  was  away  from  the  presence  of  the 
parties  and  in  the  actual  possession  of  a  third  person. 

We  are  not  willing  to  approve  the  extreme  views  which  have  been 
adopted  in  the  cases  cited.  We  agree  with  the  sentiment  expressed  in 
Ridden  v.  Thrall,  125  N.Y.  572,  that  ''public  pohcy  requires  that  the 
laws  regulating  gifts  causa  mortis  should  not  be  extended,  and  that 
the  range  of  such  gifts  should  not  be  enlarged."  W^hen  it  is  remem- 
bered that  these  gifts  come  into  question  only  after  death  has  closed 
the  Ups  of  the  donor;  that  there  is  no  legal  limit  to  the  amount  which 
may  be  disposed  of  by  means  of  them;  that  millions  of  dollars'  worth 
of  property  are  locked  up  in  vaults  the  keys  of  which  are  carried  in 
the  owners'  pockets,  and  that,  under  the  rule  applied  in  those  cases, 
such  wealth  may  be  transferred  from  the  dying  owner  to  his  attend- 
ant, provided  the  latter  will  take  the  key  and  swear  that  it  was  de- 
livered to  him  by  the  deceased  for  the  purpose  of  giving  him  the 
contents  of  the  vault,  the  dangerous  character  of  the  rule  becomes 
conspicuous.  Around  every  other  disposition  of  the  property  of  the 
dead,  the  legislative  power  has  thrown  safeguards  against  fraud  and 
perjury.  Around  this  mode  the  requirement  of  actual  delivery  is  the 
only  substantial  protection,  and  the  courts  should  not  weaken  it  by 
permitting  the  substitution  of  convenient  and  easily-proven  devices. 

We  think  the  trial  justice  properly  decided  that  the  evidence 
would  not  warrant  the  jury  in  finding  such  a  dehvery  as  is  essential 
to  a  donation  mortis  caitsa. 

Note.  —  In  Coleman  v.  Parker,  114  Mass.  30,  the  court  said:  "We 
have  no  doubt  that  a  trunk  with  its  contents  might  be  effectively 
given  and  delivered,  in  such  a  case,  by  a  delivery  of  the  key,  not  as 
a  symbolical  delivery  of  the  property,  but  because  it  is  the  meana 
of  obtaining  possession." 


26  CALKINS    V.    LOCKWOOD.  [CHAP.  L 

In  Cooper  v.  Burr,  45  Barb.  (N.Y.)  9,  33,  the  court  said:  "It  is  es- 
sential to  a  valid  gift  by  parol,  that  there  should  be  an  actual  o; 
sj'mbolical  delivery.  The  title  does  not  pass  unless  possession,  or  the 
means  of  obtaining  it,  are  conferred  by  the  donor  and  accepted  by 
the  donee." 


CALKINS  V.  LOCKWOOD. 

17  Conn.  154.    1845. 

Church,  J.  It  is  claimed,  that  the  pretended  sale  to  the  plaintiffs 
by  Payne  was  void,  as  falling  within  the  provisions  of  the  2d  section 
of  our  statute  of  frauds  and  perjuries  ^  —  that  they  did  not  accept 
and  actually  receive  any  part  of  the  iron,  nor  give  anything  in  ear- 
nest, etc.  What  are  the  facts?  The  iron  sold  consisted  of  a  large 
quantity,  ninety-three  tons,  and  was  lying  by  itself,  and  separate 
from  all  other  iron.  The  parties  met  at  the  place  where  the  iron 
was,  and  concluded  the  terms  of  the  sale,  by  agreeing  upon  the  price 
and  its  application  upon  the  debts  due  to  the  plaintiffs;  and  then 
Payne  and  the  plaintiffs,  as  the  motion  finds,  stepped  up  to  the  iron, 
and  PajTie,  the  vendor,  said  to  the  plaintiffs,  the  vendees,  "I  deliver 
this  iron  to  you  at  that  price,"  etc.;  and  then  Lockwood  came  up, 
and  claimed  the  iron,  which  he  afterwards  removed,  and  for  which 
conversion  the  present  action  was  instituted.  There  was  here  noth- 
ing remaining  to  be  done,  by  the  vendor,  to  consummate  the  sale  or 
delivery.  He  had  no  further  claim  upon  the  iron.  The  ponderous 
nature  of  the  commodity  rendered  the  removal  of  it,  at  that  time, 
impossible.  And  why  should  it  have  been  moved?  The  vendees 
were  there,  upon  the  ground;  and  went  up  to  receive  the  iron,  when 
it  was  dp^  red  by  the  vendor.  The  delivery  was  not  symbolical, 
but  af  ;  and  it  was  received  by  the  vendees  at  the  hands  of  the 
vend       .sdth  the  intent  to  take  and  hold  the  possession  of  it. 

Note.  —  See,  however,  Shindler  v.  Houston,  1  N. Y.  26L  The  plain- 
tiff was  the  owner  of  lumber  which  was  piled  on  the  dock  apart  from 
any  other  lumber.  The  plaintiff  and  defendant  met  at  the  place  where 
the  lumber  lay.  The  plaintiff  asked  the  defendant  how  much  he 
would  give.  The  defendant  named  the  amount  he  would  give.  The 
plaintiff  then  said,  "  The  lumber  is  yours."  The  majority  of  the  court 
was  of  the  opinion  that  there  had  been  no  receipt  of  the  lumber  by  the 
defendant  within  the  meaning  of  the  Statute  of  Frauds. 

*  This  section  reads  as  follows:  "That  no  contract  for  the  sale  of  any  goods,  wares, 
and  merchandize,  for  the  price  of  thirty-five  dollars  or  upwards  shall  be  allowed  to  be 
good,  except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and  actually  receive  the 
same,  or  give  something  in  earnest,  to  bind  the  bargain,  or  in  part  of  payment,  or 
some  note  or  memorandum,  in  writing,  of  the  said  bargain,  be  made  and  signed  by  the 
parties  to  be  charged  by  such  contract,  or  their  agents  thereunto  lawfullj  authorized." 


SECT.  I.]  CARTWRIGHT    V.    GREEN.  27 


B.  The  Intent  to  Control. 


CARTWRIGHT  v.   GREEN. 

8  Ves.  405.    1803. 

The  bill  stated,  that  Ann  Cartwright  digd  possessed  of  a  bureau, 
in  a  secret  part  of  which  she  had  concealed  nine  hundred  guineas  in 
specie.  After  her  death  Richard  CartuTight,  her  personal  represent- 
ative, lent  the  bureau  to  his  brother  Henry,  who  took  it  to  the  East 
Indies,  and  brought  it  back,  the  contents  remaining  still  undiscov- 
ered. It  was  then  sold  to  .  .  .  Dick  for  three  guineas,  who  delivered 
it  to  the  defendant  Green,  a  carpenter,  for  the  purpose  of  repairing  it. 
Green  emploj^ed  a  person,  named  Hillingworth,  who  found  out  the 
money,  and  received  a  guinea  for  his  trouble;  and  the  whole  sum  of 
nine  hundred  guineas  was  possessed  by  the  three  defendants  Green, 
his  wife,  and  Elizabeth  Sharpe,  who  secreted  and  converted  it  to 
their  own  use. 

This  bill,  charging  all  these  circumstances,  and  that  Green  paid  his 
debts,  and  bought  stock,  for  which  he  had  no  other  means  except  the 
money  found  in  the  bureau,  prayed  a  discoverj^;  stating,  that  the 
plaintiff  Cartwright  had  brought  an  action  as  personal  representative 
of  Ann  Cartwright.  Dick  joined  in  the  bill  as  a  plaintiff;  but  he  did 
not  set  up  any  claim  to  the  money  on  his  own  account. 

The  Lord  Chancellor  (Eldon).  Finally  the  question  in  this 
case  will  be,  whether  the  bill  charges  a  felony  or  not.  To  the  objec- 
tion, that  the  demurrer  covers  too  much,  the  answer  is,  that  the  bill  is 
in  aid  of  an  action;  and  if  it  appears  upon  the  bill,  that  the  action  is 
founded  in  a  felony,  the  policy  of  the  law  requires  that  the.-'Durt 
should  not  give  the  discovery.  As  to  the  ground,  that  the  -^ife  ueing 
present  with  her  husband  could  not  be  punished,  and  therefore  the 
demurrer  is  bad,  because  all  three  joined,  the  answer  is,  that  all  the 
three  may  now  join  ore  tenus  in  another  ground  of  demurrer,  which 
would  be  good,  namely,  that  the  discovery  is  in  aid  of  an  action: 
which,  if  founded  in  felony,  the  court  cannot  aid.  The  question 
therefore  is  reduced  to  this,  whether  the  facts  stated  amount  to 
felony  or  larceny:  upon  which  the  distinctions  are  so  extremely  nice 
and  depend  upon  attention  to  so  many  cases,  and  are  so  important  in 
the  consequences,  that  I  will  not  trust  myself  to  say  anything  upon 
them,  until  I  have  seen  all  the  cases,  and  consulted  several  of  the 
judges. 

April  28th.  The  Lord  Chancellor  (Eldon).  This  case  involves 
a  very  delicate  consideration  in  equity;  for,  whatever  was  the  old 
doctrine  as  to  larceny,  distinctions  have  been  taken  in  late  cases, 


28  CARTWRIGHT   V.    GREEN.  [CHAP.  I. 

which  make  it  frequently  the  subject  of  very  nice  consideration, 
whether  the  taking  is  a  trespass  or  only  a  breach  of  trust.  I  have 
looked  into  the  books;  and  have  talked  with  some  of  the  judges  and 
others;  and  I  have  not  found  in  any  one  person  a  doubt,  that  this  is  a 
felony.  To  constitute  felony  there  must  of  necessity  be  a  felonious 
taking.  Breach  of  trust  will  not  do.  But  from  all  the  cases  in  Haw- 
kins there  is  no  doubt,  this  bureau  being  delivered  to  the  defendant 
for  no  other  purpose  than  repair,  if  he  broke  open  any  part,  which  it 
was  not  necessary  to  touch  for  the  purpose  of  repair,  but  with  an 
intention  to  take  and  appropriate  to  his  own  use  what  he  should  find, 
that  is  a  felonious  taking  within  the  principle  of  all  the  modern  cases; 
as  not  being  warranted  by  the  purpose,  for  which  it  was  delivered. 
If  a  pocket-book  containing  bank-notes  was  left  in  the  pocket  of  a 
coat  sent  to  be  mended,  and  the  tailor  took  the  pocket-book  out  of 
the  pocket  and  the  notes  out  of  the  pocket-book,  there  is  not  the 

^least  doubt  that  is  a  felony.  So,  if  the  pocket-book  was  left  in  a 
hackney  coach,  if  ten  people  were  in  the  coach  in  the  course  of  the 

_day,  and  the  coachman  did  not  know  to  which  of  them  it  belonged^ 
he  acquires  it  by  finding  it  certainly,  but  not  being  intrusted  with  it 
for  the  purpose  of  opening  it;  and  that  is  a  felony  according  to  the 
modern  cases.  There  is  a  vast  number  of  other  cases.  Those,  with 
v'hom  I  have  conversed  upon  this  point,  who  are  of  very  high  author- 
icy,  have  no  doubt  upon  it. 

Note.  —  In  Merry  v.  Green,  7  M,  and  W.  623,  A  bought  a  bureau 
at  auction,  and  thereafter  discovered,  in  a  secret  drawer,  a  purse 
containing  money,  and  appropriated  it  to  his  own  use.  At  the  time 
of  the  sale  no  person  knew  that  the  bureau  contained  anything 
whatever.  The  court  was  of  opinion  that  A  was  guilty  of  larceny,  if, 
at  the  time  of  his  purchase,  he  had  no  reason  to  believe  that  any- 
thing more  than  the  bureau  itself  was  sold  to  him. 

Rex  V.  Mucklow,  1  Moody,  C.  C.  160.  A  letter  was  delivered  to  the 
prisoner  which  was  not,  in  fact,  intended  for  him.  He  appropriated 
the  property  which  it  contained.  The  court  was  of  opinion  that  a 
conviction  of  larceny  was  wrong,  as  "it  did  not  appear  that  the 
prisoner  had  any  animo  furandi  when  he  first  received  the  letter." 

On  the  question  of  what  constitutes  "taking  possession,"  under 
the  law  of  larceny,  the  student  should  note  the  well-established 
doctrine  that  a  bailee  who  breaks  bulk  may  be  convicted.  See 
Roscoe's  Digest  (1835),  479,  where  the  learned  author  says:  "Upon 
the  principle  that  it  is  not  felony  in  a  bailee  to  convert  to  his  own  use 
the  goods  bailed  to  him,  a  nice  distinction  has  been  grafted,  which 
seems,  says  Mr.  East,  to  stand  more  upon  positive  law,  which  can- 
not now  be  questioned,  than  upon  sound  reasoning.  .  .  .  The  dis- 
tinction is  thus  stated  by  Lord  Hale.  If  a  man  delivers  goods  to  a 
carrier  to  carry  to  Dover,  and  he  carries  them  away,  it  is  no  felony; 


SECT.  I.]  REGINA    t'.    RILEY.  29 

but  if  the  carrier  have  a  bale  or  trunk  with  goods  in  it  delivered  to 
him,  and  he  breaks  the  bale  or  trunk,  and  carries  away  the  goods 
animo  Jurandi  ...  it  is  a  felonious  taking." 


REGINA  V.  RILEY. 

Dearsly's  C.  C.  149.    1853. 

At  the  General  Quarter  Sessions  of  the  Peace  for  the  County  of 
Durham,  held  at  the  City  of  Durham  before  Rowland  Burdon,  Es- 
quire, chairman,  on  the  18th  day  of  October,  1852,  the  prisoner  was 
indicted  for  having  on  the  5th  of  October,  1852,  stolen  a  lamb  the 
property  of  John  Bumside. 

The  prisoner  pleaded  not  guilty. 

On  the  trial  it  was  proved  that  on  Friday,  the  1st  day  of  October, 
1852,  John  Bumside,  the  prosecutor,  put  ten  white-faced  lambs  into 
a  field  in  the  occupation  of  John  Clarke,  situated  near  to  the  To^svn 
of  Darlington.  On  Monday,  the  4th  day  of  October,  the  prisoner 
,;ent  wath  a  flock  of  twenty-nine  black-faced  lambs  to  John  Clarke, 
j,nd  asked  if  he  might  put  them  into  Clarke's  field  for  a  night's  keep, 
and  upon  Clarke's  agreeing  to  allow  him  to  do  so  for  one  penny  per 
head,  the  prisoner  put  his  twenty-nine  lambs  into  the  same  field  with 
the  prosecutor's  lambs. 

At  half  past  seven  o'clock  in  the  morning  of  Tuesday,  the  5th  day 
of  October,  the  prosecutor  went  to  Clarke's  field,  and  in  counting  his 
lambs  he  missed  one,  and  the  prisoner's  lambs  were  gone  from  the 
field  also.  Between  eight  and  nine  o'clock  in  the  morning  of  the 
same  day,  the  prisoner  came  to  the  farm  of  John  Calvert,  at  Middle- 
ton  Saint  George,  six  miles  east  from  Darlington,  and  asked  him  to 
buy  twenty-nine  lambs.  Calvert  agreed  to  do  so  and  to  give  eight 
shillings  apiece  for  them.  Calvert  then  proceeded  to  count  the  lambs, 
and  informed  the  prisoner  that  there  were  thirty  instead  of  twenty- 
nine  in  the  flock,  and  pointed  out  to  him  a  white-faced  lamb,  upon 
which  the  prisoner  said  if  you  object  to  take  thirty,  I  will  draw  one. 
Calvert,  however,  bought  the  whole  of  them,  and  paid  the  prisonei 
twelve  pounds  for  them. 

One  of  the  lambs  sold  to  Calvert  was  identified  by  the  prosecutor 
as  his  property,  and  as  the  lamb  missed  by  him  from  Clarke's  field. 
It  was  a  half-bred  white-faced  lamb,  marked  with  the  letter  T,  and 
similar  to  the  other  nine  of  the  prosecutor's  lambs. 

The  twenty-nine  lambs  belonging  to  the  prisoner  were  black-faced 
lambs.  On  the  5th  of  October,  in  the  afternoon,  the  prisoner  stated 
to  two  of  the  witnesses  that  he  never  had  put  his  lambs  into  Clarke's 
field,  and  had  sold  them  on  the  previous  afternoon  for  eleven  pounds 
twelve  shillings,  to  a  person  on  the  Barnardcastle  Road,  which  road 
leads  west  from  Darlington. 


30  REGINA    V.    RILEY.  [CHAP.  I. 

There  was  evidence  in  the  case  to  show  that  the  prisoner  must  have 
taken  the  lambs  from  Clarke's  field  early  in  the  morning,  which  was 
thick  and  rainy. 

It  was  argued  by  the  counsel  for  the  prisoner,  in  his  address  to  the 
jury,  that  the  facts  showed  that  the  original  taking  from  Clarke's 
field  was  by  mistake,  and  if  the  jury  were  of  that  opinion,  then  as  the 
original  taking  was  not  done  animo  fur  audi  the  subsequent  appropri- 
ation would  not  make  it  a  larceny,  and  the  prisoner  must  be  ac- 
quitted. The  Chairman,  in  summing  up,  told  the  jury  that  though 
they  might  be  of  opinion  that  the  prisoner  did  not  know  that  the 
lamb  was  in  his  flock  until  it  was  pointed  out  to  him  by  Calvert,  he 
should  rule  that  in  point  of  law  the  taking  occurred  when  it  was  so 
pointed  to  the  prisoner  and  sold  by  him  to  Calvert,  and  not  at  the 
time  of  leaving  the  field. 

The  jury  returned  the  following  verdict:  "The  jury  say  that  at  the 
time  of  leaving  the  field  the  prisoner  did  not  know  that  the  lamb  was 
in  his  flock,  and  that  he  was  guilty  of  felony  at  the  time  it  was  pointed 
out  to  him." 

The  prisoner  was  then  sentenced  to  six  months'  hard  labor  in  the 
house  of  correction  at  Durham,  and  being  unable  to  find  bail  was 
thereupon  committed  to  prison  until  the  opinion  of  this  court  could 
be  taken  upon  the  question :  — 

Whether  Charles  Riley  was  properly  convicted  of  larceny. 

The  case  was  argued  before  Pollock,  C.  B.,  Parke,  B.,  and 
Williams,  J.,  Talfourd,  J.,  and  Crompton,  J. 

Liddell  (for  the  prisoner).  Here  the  prisoner  had  the  lamb  in  his 
possession  before  the  time  of  the  alleged  taking. 

Pollock,  C.  B.  What  do  you  mean  by  the  word  "  possession  "  ? 

Liddell.  He  had  such  a  possession  as  would  have  enabled  him  to 
maintain  trespass. 

Pollock,  C.  B.  The  difficulty  in  the  case  is,  when  can  it  be  said 
that  there  was  a  taking? 

Liddell.  If  not  when  the  flock  left  the  field,  when  was  the  taking? 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  conviction  in  this 
case  is  right.  The  distinction  between  this  and  the  case  of  Eeg.  v. 
Thistle,  1  Den.  C.  C.  502,  is  this:  If  a  man  rightfully  gets  possession 
of  an  article  without  any  intention  at  the  time  of  stealing  it,  and 
afterwards  misappropriates  it,  the  law  holds  it  not  to  be  a  felony.  In 
that  case  a  man  had  delivered  his  watch  to  a  watchmaker  to  regulate 
it,  and  the  watchmaker  afterwards  disposed  of  it  for  his  owti  use.  In 
the  case  of  Thurborn  v.  Thistle,  1  Den.  C.  C.  388,  where  Parke,  B., 
delivered  the  considered  judgment  of  the  judges,  it  was  ruled  that  "  if 
a  man  find  goods  that  have  been  actually  lost,  or  are  reasonably  sup- 
posed by  him  to  have  been  lost,  and  appropriates  them  with  intent 
to  take  the  entire  dominion  over  them,  really  believing,  when  he 
takes  them,  that  the  owner  cannot  be  found,  it  is  no  larceny;  but  if 


SECT.  I.]  REGINA    V.    RILEY.  31 

he  takes  them  with  the  like  intent,  though  lost  or  reasonably  sup- 
posed to  be  lost,  but  reasonably  believing  that  the  owner  can  be 
found,  it  is  larceny."  It  may  reasonably  be  said  not  to  be  a  violation 
of  any  social  duty  for  a  man  who  finds  a  lost  article  to  take  it  home 
for  the  purpose  of  finding  out  the  true  owner;  and  if  he  does  this 
honestly  in  the  first  instance,  and  afterwards,  though  he  may  have 
discovered  the  true  owner,  is  seduced  into  appropriating  it  to  his  own 
use,  he  is  not  guilty  of  larceny,  though  he  does  wrong.  So  in  Leigh's 
case,  2  East,  P.  C.  694,  it  appeared  that  the  prosecutor's  house  was  on 
fire,  and  that  the  prisoner  assisted  in  saving  some  of  his  goods,  and 
took  some  of  them  home  to  her  lodgings,  but  next  morning  denied 
that  she  had  them  in  her  possession.  It  was  suggested  that  she  origi- 
nally took  the  goods  with  an  honest  intent,  that  of  assisting  in  saving 
her  neighbor's  property  from  the  fire.  She  was  found  guilty;  but  the 
judges,  as  it  appeared  that  she  originally  took  the  goods  merely  from 
a  desire  of  saving  them  for,  and  returning  them  to,  the  prosecutor, 
and  that  she  had  no  evil  intention  till  afterwards,  held  that  the  con- 
viction was  wrong.  There  the  original  taking  was  not  wrongful ;  in- 
deed it  was  right,  for  she  took  possession  of  the  goods  under  the 
authority  of  the  true  owner.  In  all  these  cases  the  original  possession 
was  not  wrongful.  But  in  the  case  now  before  the  court,  the  prisoner's 
possession  of  the  lamb  was  from  the  beginning  wrongful.  Here  the 
taking  of  the  lamb  from  the  field  was  a  trespass;  or  if  it  be  said  that 
there  was  no  taking  at  that  time,  then  the  moment  he  finds  the  lamb 
he  appropriates  it  to  his  own  use.  The^istinction  between  the  cases 
is  this:  if  the  original  possession  be  rightfulT'Sttbsequent  misappro- 
priatibri'^oe&  not  .make  it  a  felony;  but  if  ..the  original  possession 
bejyrongful,  though  not  felonious,  and  then  a  man  disposes  of  the 
c^attel^  aniina  fur  and  i,  it  is  larceny. 

Tarke,  B.  The  original  taking  was  not  lawful.  The  prisoner  being 
originally  a  trespasser,  he  continued  a  trespasser  all  along,  just  as  at 
common  law,  a  trespass  begun  in  one  county  continued  in  another, 
and,  being  a  trespasser,  the  moment  he  took  the  lamb  with  a  felo- 
nious intent,  he  became  a  thief.  He  at  first  simply  commits  a  trespass ; 
but  as  soon  as  he  entertains  a  felonious  intent,  that  becomes  a  felo- 
nious trespass.  Leigh's  case  was  altogether  a  different  case  from  the 
present.  There  the  original  possession  was  lawful,  with  the  assent  of 
the  true  owner,  the  prisoner  rendering  charitable  assistance  in  pre- 
serving the  goods  from  fire.  When  she  first  took  the  goods  into  her 
possession,  she  was  not  a  trespasser. 
Williams,  J.,  Talfourd,  J.,  and  Crompton,  J.,  concurred. 


32  QUEEN    V.    ASHWELL.  [CHAP.  I, 

QUEEN  V.  ASHWELL. 

L.  R.  16  Q.  B.  D.  190.   1885. 

Case  stated  by  Denman,  J. 

At  the  assizes  for  the  County  of  Leicester  in  January,  1883, 
Thomas  Ashwell  was  tried  for  larceny  of  a  sovereign,  the  moneys  of 
Edward  Keogh. 

Keogh  and  Ashwell  met  in  a  public-house  on  the  evening  of  the  9th 
of  January,  At  about  8  p.m.,  Ashwell  asked  Keogh  to  go  into  the 
yard,  and  when  there  requested  Keogh  to  lend  him  a  shilling,  saying 
that  he  had  money  to  draw  on  the  morrow,  and  that  he  would  then 
repay  him,  Keogh  consented,  and  putting  his  hand  in  his  pocket 
pulled  out  what  he  believed  to  be  a  shilling,  but  what  was  in  fact  a 
sovereign,  and  handed  it  to  Ashwell,  and  went  home  leaving  Ashwell 
in  the  yard.  About  9  the  same  evening,  Ashwell  obtained  change  for 
the  sovereign  at  another  public-house. 

At  5.20  the  next  morning,  Keogh  went  to  Ashwell's  house  and  told 
him  that  he  had  discovered  the  mistake,  whereupon  Ashwell  falsely 
denied  having  received  the  sovereign,  and  on  the  same  evening  he 
gave  false  and  contradictory  accounts  as  to  where  he  had  become 
possessed  of  the  sovereign  he  had  changed  at  the  second  public-house 
on  the  night  before.  Sut  he  afterwards  said,  "I  had  the  sovereign 
and  spent  half  of  it,  and  I  shan't  give  it  him  back  because  I  only 
asked  him  to  lend  me  a  shilling." 

It  was  submitted  for  the  prisoner  that  there  was  no  evidence  of 
larceny  —  no  taking  —  no  obtaining  by  trick  or  false  pretence  —  no 
evidence  that  the  prisoner  at  the  time  he  received  the  sovereign 
knew  it  was  not  a  shilling. 

I  declined  to  withdraw  the  case  from  the  jury,  thinking  it  desirable 
that  the  point  raised  should  be  decided  by  the  Court  of  Criminal 
Appeal. 

The  jury  found  that  the  prisoner  did  not  know  that  it  was  a  sov- 
ereign at  the  time  he  received  it,  but  said  they  were  unanimously  of 
opinion  that  the  prosecutor  parted  with  it  under  the  mistaken  belief 
that  it  was  a  shilling,  and  that  the  prisoner  having,  soon  after  he 
received  it,  discovered  that  it  was  a  sovereign  could  have  easily 
restored  it  to  the  prosecutor,  but  fraudulently  appropriated  it  to  his 
own  use,  and  denied  the  receipt  of  it,  knowing  that  the  prosecutor 
had  not  intended  to  part  with  the  possession  of  a  sovereign  but 
only  of  a  shilling.  They  added  that  if  it  were  competent  to  them 
consistently  with  these  findings  and  with  the  evidence  to  find  the 
prisoner  guilty,  they  meant  to  do  so. 

A  verdict  of  guilty  was  entered,  but  the  prisoner  was  admitted  to 
bail,  to  come  up  for  judgment  at  the  next  assizes  if  this  court  should 


SECT.  I.]  QUEEN    V.    ASHWELL.  33 

think  that  upon  the  above  facts  and  findings  he  could  properly  be 
found  guilty  of  larceny. 

Smith,  J.,  read  the  following  judgment.  The  prisoner  in  this  case 
was  indicted  for  the  larceny  of  a  sovereign,  the  moneys  of  Edward 
Keogh. 

The  material  facts  are  as  follows :  Keogh  handed  to  the  prisoner  the 
sovereign  in  question,  believing  it  was  a  shilling  and  not  a  sovereign, 
upon  the  terms  that  the  prisoner  should  hand  back  a  shilling  to  him 
when  he  (the  prisoner)  was  paid  his  wages.  At  the  time  the  sover- 
eign was  so  handed  to  the  prisoner  he  honestly  believed  it  to  be  a 
shilling.  Some  time  afterwards  the  prisoner  discovered  that  the  coin 
he  had  received  was  a  sovereign  and  not  a  shilling,  and  he  then  and 
there  fraudulently  appropriated  it  to  his  owti  use.  Is  this  larceny  at 
common  law  or  by  statute? 

To  constitute  the  crime  of  larceny  at  common  law,  in  my  judgment 
there  must  be  a  taking  and  carrying  away  of  a  chattel  against  the  will 
of  the  owner,  and  at  the  time  of  such  taking  there  must  exist  a  felo- 
nious intent  in  the  mind  of  the  taker.  If  one  or  both  of  the  above  ele- 
ments be  absent  there  cannot  be  larceny  at  common  law.  The  taking 
must  be  under  such  circumstances  as  would  sustain  an  action  of  tres- 
pass. If  there  be  a  bailment  or  delivery  of  the  chattel  by  the  owTier, 
inasmuch  as,  among  other  reasons,  trespass  will  not  lie,  it  is  not 
larceny  at  common  law.  In  Hawkins's  Pleas  of  the  CrowTi,  book  i, 
chap.  33,  sect.  1,  it  is  stated:  "It  is  to  be  observed  that  all  felony 
includes  trespass;  and  that  every  indictment  of  larceny  must  have 
the  words  felonice  cepit  as  well  as  asportavit;  from  whence  it  follows, 
that  if  the  party  be  guilty  of  no  trespass  in  taking  the  goods,  he  cac 
not  be  guilty  of  felony  in  carrying  them  away."  As  I  understanc/,, 
the  counsel  for  the  Crown  did  not  really  dispute  the  above  definition, 
and  indeed  if  he  had,  upon  further  referring  to  the  3d  Institutes, 
chap.  47,  p.  107,  and  1  Hale's  Pleas  of  the  Crown,  p.  61,  it  would  be 
found  to  be  fully  borne  out  by  those  writers.  The  two  cases  cited  in 
argument.  Rex  v.  Mucklow  and  Reg.  v.  Davies,  are  good  illustrations 
of  what  I  have  enunciated;  and  if  other  cases  were  wanted,  there  are 
plenty  in  the  books  to  the  same  effect. 

In  the  present  case  it  seems  to  me,  in  the  first  place,  that  the  coin 
was  not  taken  against  the  will  of  the  owner,  and  if  this  be  so,  in  my 
judgment  it  is  sufficient  to  shew  that  there  was  no  larceny  at  com- 
mon law;  and  secondly,  it  being  conceded  that  there  was  no  felonious 
intent  in  the  prisoner  when  he  received  the  coin,  this  in  my  judgTiient 
is  also  fatal  to  the  act  being  larceny  at  common  law. 

As  to  this  last  point,  the  law  laid  down  by  Cockburn,  C.  J., 
Blackburn,  Mellor,  Lush,  Grove,  Denman,  and  Archibald,  JJ., 
in  the  case  of  Reg.  v.  Middleton,  is  very  pertinent;  it  is  as  follows: 
"  We  admit  that  the  case  is  undistinguishable  from  the  one  supposed 
in  argument,  of  a  person  handing  to  a  cabman  a  sovereign  by  mis- 


34  QUEEN   V.   ASHWELL.  [CHAP.  I. 

take  for  a  shilling;  but  after  carefully  weighing  the  opinions  to  the 
contrary,  we  are  decidedly  of  opinion  that  the  property  in  the  sover- 
eign would  not  vest  in  the  cabman,  and  that  the  question  whether 
the  cabman  was  guilty  of  larceny  or  not,  would  depend  upon  this, 
whether  he,  at  the  time  he  took  the  sovereign,  was  aware  of  the  mis- 
take, and  had  then  the  guilty  intent,  the  animus  fur andi.^'  I  believe 
the  above  to  be  good  law.  The  contention,  however,  of  the  Crown 
was  that,  although  the  above  might  be  correct,  yet  the  present  case 
was  to  be  likened  to  those  cases  in  which  finders  of  a  lost  chattel 
have  been  held  guilty  of  larceny.  The  principle  upon  which  a  finder 
of  a  lost  chattel  has  been  held  guilty  of  larceny  is,  that  he  has  taken 
and  carried  away  a  chattel,  not  believing  that  it  had  been  abandoned, 
and  at  the  time  of  such  taking  has  had  the  felonious  intent.  The 
proper  direction  to  be  given  to  a  jury  being,  as  I  understand,  "Did 
the  prisoner  at  the  time  of  finding  the  chattel  intend  to  appropriate 
it  to  his  own  use,  then  believing  that  the  true  owner  could  be  found, 
and  that  the  chattel  had  not  been  abandoned."  See  Reg.  v.  Thur- 
born  and  Reg.  v.  Glyde.  If  he  did,  he  would  be  guilty  of  larceny, 
aliter  he  would  not.  Then  it  was  argued  by  the  counsel  for  the 
CroTVTi,  that  the  prisoner  in  this  case  was  on  the  same  footing  as  a 
finder  of  a  chattel.  In  my  judgment  the  facts  do  not  support  him. 
Keogh,  in  the  present  case,  intended  to  deliver  the  coin  to  the 
prisoner,  and  the  prisoner  to  receive  it.4The  chattel,  namely  the 
coin,  was  delivered  over  to  the  prisoner  by  its  owner,  and  the  prisoner 
received  it  honestly.  He  always  knew  he 'had  the  coin  in  his  posses- 
sion after  it  had  been  delivered  to  him.  The  only  thing  which  was 
subsequently  found  was  that  the  coin  delivered  was  worth  240c?. 
instead  of  12d.,  as  had  been  supposed.  This  argument,  as  it  seems  to 
me,  confounds  the  finding  out  of  a  mistake  with,  the  finding  of  a 
chattel.  In  some  cases,  as  above  pointed  out,  the  finder  of  a  chattel 
may  be  guilty  of  larceny  at  common  law;  but  how  does  that  shew 
that  the  finder  out  of  a  mistake  may  also  be  guilty  of  such  a  crime? 
A  mistake  is  not  a  chattel.  The  chattel  (namely  the  coin)  in  this 
case  never  was  lost;  then  how  could  it  be  found?  In  my  judgment 
the  argument  upon  this  point  for  the  Cro"s\Ti  is  wholly  fallacious 
and  fails.  It  was  further  argued  for  the  CroTvn  that  the  present 
case  was  covered  by  authority,  and  the  cases  of  Cartwright  v.  Green 
and  Merry  v.  Green  were  cited  in  this  behalf.  I  fail  to  see  that  either 
case  is  an  authority  for  the  point  insisted  upon  by  the  Crown.  In 
the  first  of  these  cases,  the  question  arose  upon  demurrer  of  a  bill 
in  chancery  as  to  whether  a  felony  was  disclosed  upon  the  face  of  the 
bill.  Lord  Eldon,  as  he  states  in  his  judgment,  decided  the  case  upon 
the  ground  that,  inasmuch  as  the  bureau  in  question  had  been 
delivered  to  the  defendant  for  no  other  purpose  than  repair,  and  he 
had  broken  open  a  part  of  it  which  it  was  not  necessary*  to  touch  for 
the  purpose  of  repair  with  the  intention  of  taking  and  appropriating 


SECT.  I.]  QUEEN    V.    ASHWELL.  35 

to  his  own  use  whatever  he  should  j5nd  therein,  that  this  was  larceny. 
I  conceive  this  to  be  distinctly  within  the  principle  I  have  above 
stated  —  there  was  the  taking  against  the  will  of  the  owner  with  the 
felonious  intent  at  the  time  of  taking. 

The  other  case,  namely,  Merry  v.  Green,  which  was  also  the  case  of 
a  purse  in  a  secret  drawer  of  a  bureau  which  had  been  purchased  at  a 
sale,  was  clearly  decided  by  Baron  Paeke,  who  delivered  the  judg- 
ment of  the  court,  upon  the  principles  applicable  to  a  case  of  finding. 
The  learned  Baron  says:  "It  seems  to  us,  that  though  there  was  a 
delivery  of  the  secretary,  and  a  lawful  property  in  it  thereby  vested 
in  the  plaintiff,  there  was  no  delivery  so  as  to  give  a  lawful  possession 
of  the  purse  and  money.  The  vendor  had  no  intention  to  deliver  it, 
nor  the  vendee  to  receive  it ;  both  were  ignorant  of  its  existence :  and 
when  the  plaintiff  discovered  that  there  was  a  secret  drawer  con- 
taining the  purse  and  money,  it  was  a  case  of  simple  finding,  and  the 
law  applicable  to  all  cases  of  finding  applies  to  this."  I  understand 
the  learned  Baron  when  he  says  "the  law  applicable  to  all  cases  of 
finding  applies,"  to  mean  the  law  applicable  to  the  cases  of  finding  a 
chattel,  for  there  are  no  cases  extant  as  to  finding  out  a  mistake  to 
which  his  remark  could  apply.  That,  too,  is  the  distinction  between 
the  present  case  and  that  before  Baron  Parke.  No  intention  to 
deliver  the  chattel  (namely,  the  purse  and  money)  at  all  ever  ex- 
isted, whereas  in  the  present  case  there  was  every  intention  to 
deliver  the  chattel  (namely  the  coin),  and  it  was  delivered  and 
honestly  received. 

In  my  judgment,  a  man  who  honestly  receives  a  chattel  by 
delivery  thereof  to  him  by  its  true  owner,  cannot  be  found  guilty  of 
larceny  at  common  law,  and  in  my  opinion  the  prisoner  in  this  case  is 
not  guilty  of  that  offence. 

Lord  Coleridge,  C.  J.,  read  the  following  judgment. 

On  the  question  as  to  larceny  at  common  law,  I  desire  to  add  only 
a  few  words,  and  to  call  attention  to  a  case  to  which  my  attention 
has  been  called  by  a  gentleman  at  the  bar,  whicn  was  not  mentioned 
in  the  argument ;  possibly  because  it  was  one  which  did  not  exactly 
suit  the  views  of  either  party  to  that  argument.  I  assume  it  to  be 
now  established  law  that  where  there  has  been  no  trespass,  there  can 
at  common  law  be  no  larceny.  I  assume  it  also  to  be  settled  law  that 
where  there  has  been  a  delivery  —  in  the  sense  in  which  I  will 
explain  in  a  moment  —  of  a  chattel  from  one  person  to  another, 
subsequent  misappropriation  of  that  chattel  by  the  person  to  whom 
it  has  been  delivered  will  not  make  him  guilty  of  larceny,  except  by 
statute,  with  which  I  am  not  now  concerned.  But  then  it  seems  to 
me  very  plain  that  delivery  and  receipt  are  acts  into  which  mental 
intention  enters,  and  that  there  is  not  in  law  any  more  than  in  sense 
a  delivery  and  receipt,  unless  the  giver  and  receiver  intend  to  give 
and  to  receive  respectively  what  is  respectively  given  and  received. 


36  QUEEN    V.    ASHWELL.  [CHAP.  L 

It  is  intelligent  delivery,  as  I  think,  which  the  law  speaks  of,  not  a 
mere  physical  act  from  which  intelligence  and  even  consciousness  are 
absent.  I  hope  it  is  not  laying  down  anything  too  broad  or  loose,  if  I 
say  that  all  acts,  to  carry  legal  consequences,  must  be  acts  of  the 
mind;  and  to  hold  the  contrary,  to  hold  that  a  man  did  what  in  sense 
and  reason  he  certainly  did  not,  that  a  man  did  in  law  what  he  did 
not  know  he  was  doing  and  did  not  intend  to  do  —  to  hold  this  is  to 
expose  the  law  to  very  just  but  wholly  unnecessary  ridicule  and 
scorn.  I  agree  with  my  brother  Stephen  that  fictions  are  objection- 
able, and  I  desire  not  to  add  to  them ;  but  it  seems  to  me,  with  diffi- 
dence, that  he  creates  the  fiction  who  holds  that  a  man  does  what  he 
does  not  know  he  does  and  does  not  mean  to  do,  not  he  who  says 
that  an  act  done  by  an  intelligent  being  for  which  he  is  to  be  respon- 
sible is  not  an  act  of  that  being  unless  it  is  an  act  of  his  intelligence. 
If  it  had  been  so  decided  by  authority  which  binds  me,  of  course  I 
should  submit;  but  if  it  has  not  been  so  decided,  I  take  the  freedom 
to  say  it  is  not  law  —  at  least  yet.  In  this  case,  therefore,  it  seems  to 
me  there  was  no  delivery  of  the  sovereign  to  the  prisoner  by  Keogh, 
because  there  was  no  intention  to  deliver,  and  no  knowledge  that  it 
had  been  delivered. 

Appljdng  the  same  principles  of  reasoning,  it  appears  to  me  that 
the  sovereign  was  received  by  the  prisoner  and  misappropriated  by 
him  at  one  and  the  same  instant  of  time.  In  good  sense  it  seems  to 
me  he  did  not  take  it  till  he  knew  what  he  had  got ;  and  when  he  knew 
what  he  had  got,  that  same  instant  he  stole  it.  According  to  all  the 
cases,  if  at  the  very  moment  of  the  receipt  of  a  chattel  the  receiver 
intends  to  misappropriate  and  does  misappropriate  it,  he  is  guilty  of 
laTceny.  I  think  for  the  reasons  I  have  given,  and  in  the  sense  I  have 
defined,  the  prisoner  did  so  here :  and  this  seems  to  me,  with  great 
deference  to  my  brother  Smith,  to  be  the  answer  to  the  exceedingly 
able  and  ingenious  passage  in  his  judgment  in  which  he  says  that  it  is 
a  fallacy  to  confound  two  things  so  utterly  different  as  the  discovery 
of  a  mistake  and  the  stealing  of  a  chattel.  I  do  not  shrink  from  the 
conclusion,  which  seems  to  me  good  sense,  that  sometimes  the  dis- 
covery of  a  mistake  and  the  stealing  of  a  chattel  may  be  the  same, 
or  rather  may  be  two  forms  of  words  equally  descriptive  of  the  same 
facts,  if,  as  here,  the  chattel  is  really  discovered  and  stolen  at  one  and 
the  same  instant  of  time. 

This  would  be  my  view  if  the  case  were  bare  of  authority,  and  the 
matter  were  res  Integra.  But  it  is  not  res  integra,  and  there  is  abun- 
dant authority.  On  this  part  of  the  case  I  concur  with  my  brother 
Cave.'  I  think  we  cannot  reverse  this  conviction  without  practically 
overruhng  Lord  Eldon  in  Cartwright  v.  Green,  the  Court  of  Ex- 
chequer in  Merry  v.  Green,  and  the  dicta  cited  by  my  brother  Cave 
from  the  judgment  of  the  majority  of  the  judges  in  Reg.  v.  Middleton. 
I  can  see  no  sensible  or  intelligible  distinction  between  the  delivery  of 


SECT.  I.]  FORD    V.    STATE.  37 

a  bureau  not  known  to  contain  a  sum  of  money  or  a  purse  and  the 
delivery  of  a  piece  of  metal  not  known  to  contain  in  it  20s.  .  .  . 

It  remains  only  for  me  to  call  attention  to  Reg.  v.  Riley,  the  case 
which  I  mentioned  at  the  beginning  of  my  judgment.  In  that  case  a 
man  had  without  intending  it,  and  innocently,  driven  off  a  lamb 
belonging  to  another  man  with  a  flock  belonging  to  himself.  Some 
time  afterwards  he  discovered  the  mistake,  and  sold  his  own  flock 
and  the  lamb  that  was  not  his  own  to  a  purchaser.  It  was  held  that 
he  was  guilty  of  larceny  of  the  lamb.  The  case  was  tried  in  1852,  when 
the  law  of  the  replication  de  injuria  decided  in  Crogate's  case,  and  the 
distinction  between  case  and  trespass  decided  in  Scott  v.  Shepherd, 
still  commanded  the  assent,  indeed  the  veneration,  of  Westminster 
Hall.  And  the  ground  on  which  the  conviction  was  supported  was 
that  there  had  been  a  trespass  in  driving  off  the  lamb,  however 
innocently,  that  by  the  sale  the  trespass  became  felonious  and  I  sup- 
pose felonious  ah  initio,  to  bring  it  within  the  definitions  given  in 
Reg.  v.  Thurhorn.  The  court  there  upheld  the  conviction  on  a  ground 
extremely  technical.  If  the  owner  of  the  lamb  had  been  present 
when  it  was  driven  off,  and  believed  it  to  be  one  of  the  prisoner's 
flock,  according  to  the  present  argument  the  conviction  in  Reg.  v. 
Riley  must  have  been  quashed.  I  cannot  think  it  would  have  made 
any  difference,  and  the  case  as  it  stands  is  an  authority  under  cir- 
cumstances hardly  different  from  those  in  the  present  case  for  up- 
holding this  conviction.  I  am  therefore  of  opmion  that  the  convic- 
tion was  right. 

...  There  are  seven  [judges]  for  affirming  the  conviction  and  seven 
for  quashing  the  conviction,  and  by  the  well-knouTi  rule  of  this 
court,  prcesumitur  pro  negante,  the  conviction  stands. 


FORD  V.  STATE. 

85  Md.  465.   1897. 

The  appellant  was  indicted  for  violating  the  lottery  laws.  Section 
178  of  chapter  310  of  the  Laws  of  1894  provided  that  "if  any  person 
shall  have  in  his  possession  in  this  State  any  book,  list,  slip  or  record 
of  the  numbers  drawn  in  any  lottery,  whether  in  this  State  or  else- 
where, or  any  book,  list,  slip  or  record  of  any  lottery  ticket  or  any- 
thing in  the  nature  thereof,  mentioned  in  this  section,  or  of  any 
money  received  or  to  be  received  from  or  for  the  sale  of  any  such  lot- 
tery ticket,  or  thing  in  the  nature  thereof  as  aforesaid,  (he)  shall  be 
liable  to  indictment  and  upon  conviction  shall  be,  in  the  discretion  of 
the  court,  fined  any  sum  not  exceeding  one  thousand  dollars,  or  shall 
bo  imprisoned  for  a  period  not  exceeding  one  year,  or  shall  be  both 
fined  and  imprisoned;  provided,  however,  that  this  section  shall  not 


38  FORD    V.    STATE.  [CHAP.  I. 

apply  to  any  person  who  may  have  possession  of  any  of  the  articles 
herein  mentioned  for  the  purpose  of  procuring  or  furnishing  evi- 
dence of  violations  of  any  of  the  provisions  of  the  laws  relating  to 
lotteries." 

Boyd,  J.,  delivered  the  opinion  of  the  court. 

In  view  of  the  disastrous  effect  of  those  dealing  with  lottery 
tickets,  and  upon  the  community  where  such  business  is  conducted, 
there  can  be  no  doubt  about  the  right  of  the  Legislature  to  prohibit 
any  one  from  having  them  in  his  possession,  if  that  be  reasonably 
necessary  for  the  suppression  of  the  evil.  As  the  statute  made  it  a 
crime  to  have  them  in  possession,  the  purpose  for  which  the  trav- 
erser had  them  is  wholly  immaterial,  and,  inasmuch  as  the  Legisla- 
ture did  not  make  the  crime  dependent  upon  the  knowledge  of  the 
party  as  to  what  the  articles  were,  it  was  unnecessary  to  allege  in  the 
indictment  that  the  traverser  had  them  in  his  possession  knowingly, 
wilfully  or  in  any  other  words  that  would  impute  knowledge  of  the 
fact  that  they  were  some  of  the  articles  prohibited  by  the  law.  The 
allegations  in  the  indictment  were  clearly  sufficient. 

But  it  is  contended  that  if  that  be  conceded,  the  effect  of  the 
statute  was  simply  to  shift  the  burden  to  the  traverser  and  he  could 
still  prove  that  he  did  not  have  knowledge  of  what  the  articles  were, 
and  hence  was  not  guilty  of  a  violation  of  law,  and  that  if  the  statute 
must  be  so  construed  as  to  deprive  him  of  that  right,  then  it  is  in 
conflict  vrith  the  Constitutions  of  the  United  States  and  of  this  State. 
This  question  was  intended  to  be  raised  by  the  special  plea  filed 
and  the  ofTer  of  testimony  stated  in  the  bill  of  exceptions.  The  plea 
alleges  that  the  defendant  "was  in  possession  of  policy  books  and 
slips,  as  stated  in  said  indictment,  but  also  says  that  he  is  in  no  way 
engaged  in  the  policy  business  and  that  he  was  not  aware  that  the 
papers,  books  and  other  articles  which  were  found  in  his  possession 
were  policy  or  lottery  slips;  that  the  said  articles  were  given  to  him 
to  carry  to  a  certain  place,  and  that  he  was  then  taking  them  to  that 
place  v/ithout  knowing  what  said  articles  were."  The  proffer  of 
evidence,  as  stated  in  the  bill  of  exceptions,  was  "that  said  articles 
were  given  to  him  by  a  man  who  asked  him  to  deliver  them  to  an- 
other man;  and  that  he  did  not  know  what  said  articles  were  and  had 
no  knowledge  that  they  were  policy  books  or  anything  connected 
with  said  business." 

It  would,  of  course,  be  no  excuse  if  the  traverser  did  not  know  that 
the  law  prohibited  the  possession  of  these  articles.  He  is,  on  the  con- 
trary, presumed  to  know  that  it  did.  Would,  then,  his  ignorance  of 
the  fact  that  what  he  had  in  his  possession  were  policy  books  and 
slips  excuse  him?  It  is  argued  that  to  hold  it  would  not,  might  result 
in  the  conviction  and  punishment  of  innocent  people  —  that  some 
one  might  find  on  the  street  a  book  or  list  of  lottery  tickets  and  not 
know  what  it  was,  but  be  convicted  simply  because  he  had  it  in  his 


SECT.  I.]  FORD    V.    STATE.  39 

possession.  We  are  not  informed  by  the  record  how  the  books,  lists, , 
slips  and  records  named  in  the  indictment  are  made  and  what  they 
embrace,  but  in  the  supplemental  brief  the  learned  counsel  for  the 
traverser  have  undertaken  to  explain  them,  and  we  cannot  imagine 
how  any  one  finding  either  of  them  on  the  street  would  be  induced 
to  take  it  into  his  possession  unless  he  knew  what  it  was,  for  it  seems 
to  be  merely  a  collection  of  figures  and  letters  so  arranged  as  to  be 
utterly  unintelligible  to  any  one  not  learned  in  the  business  and  to  an 
innocent  person  would  certainly  not  be  suggestive  of  any  value.  If 
any  one  be  so  unfortunate  as  to  find  one,  and  whilst  satisfying  his 
curiosity  as  to  what  it  is  a  police  officer  overtakes  him,  it  will  be  time 
enough  to  determine  whether  he  had  it  in  his  possession  within  the 
meaning  of  the  statute.  But  if  after  a  person  has  undoubtedly  gotten 
into  his  possession  one  of  the  prohibited  articles  he  is  to  be  permitted, 
notwithstanding  the  language  of  the  statute,  to  prove  that  he  found 
it,  or  did  not  know  what  it  was,  it  will  make  the  statute  practically 
useless;  for  if  he  swears  that  such  be  the  case  it  will  generally  be 
impossible  for  the  State  to  prove  the  contrary,  and  will  be  a  great 
temptation  to  perjury,  not  only  to  the  accused,  but  to  others  who 
might  come  to  his  assistance. 

In  State  v.  Baltimore  and  Susquehanna  Steam  Comyany,  13  Md. 
181,  the  statute  under  consideration  provided  ''that  it  shall  not  be 
lawful  for  any  slave  to  be  transported  on  any  railroad,  or  on  any 
steamboat,  etc.,  without  a  permission  in  writing  from  the  o^\^ler  of 
such  slave."  The  defence  was  that  the  company,  or  its  agents,  had 
no  knowledge  that  the  negro  was  on  board  and  had  no  intention  to 
violate  the  law,  but  the  court  held  that  the  liability  could  be  enforced 
without  reference  to  such  circumstances.  Tuck,  J.,  in  delivering  the 
opinion  of  the  court,  said,  "  If  the  Legislature  deemed  it  expedient  in 
view  of  the  grievance  complained  of  to  hold  persons  responsible  for 
transporting  negroes,  whether  they  were  instigated  by  a  criminal 
intent  or  not,  they  had  the  power  to  do  so.  Such  acts  may  produce 
mischief  in  individual  cases,  but  the  inconvenience  and  injury  would 
be  much  more  general  if  in  every  case  of  this  kind  the  party  charged 
could  defend  himself  by  offering  evidence  that  he  did  not  know  the 
negro  was  on  board  the  boat,  and  that  reasonable  diligence  had  been 
used  to  prevent  such  persons  from  coming  on  board.  The  law  would 
scarcely  afford  any  protection  to  slave  owners."  In  Carroll  v.  State, 
63  Md.  551,  this  court  said,  "As  ignorance  of  the  existence  of  such 
law  will  not  excuse,  so  also  ignorance  of  a  fact  necessary  to  be  known 
to  avoid  a  violation  of  law  will  not  excuse."  In  that  case  there  are 
quotations  from  3  Grcenleaf  on  Evidence,  section  21,  that  "where  a 
statute  commands  that  an  act  be  done  or  omitted,  which,  in  the 
absence  of  such  statute,  might  have  been  done  or  omitted  without 
culpability,  ignorance  of  the  fact  or  state  of  things  contemplated  by 
the  statute,  it  seems,  will  not  excuse  its  violation."  Again,  "Such  is 


40  FORD    V.    STATE.  [cHAP.  1, 

the  case  in  regard  to  fiscal  and  police  regulations,  for  the  violation 
of  which,  irrespective  of  the  motives  or  knowledge  of  the  party, 
certain  penalties  are  enacted;  for  the  law,  in  those  cases,  seems  to 
bind  the  party  to  know  the  facts  and  to  obey  the  law  at  his  peril." 
The  court  refers  to  a  note  in  Greenleaf  where  the  rule  "is  said  to 
apply  to  the  sale  of  any  articles,  the  sale  of  which  is  prohibited,  and 
it  has  been  held  to  be  no  excuse  that  the  vendor  did  not  know  it  was 
a  prohibited  article."  Some  of  the  cases  cited  in  that  opinion  are 
very  applicable  to  this  case. 

Note.  —  Stevens  v.  State,  19  Neb.  647.  The  defendant  feloniously 
took  a  coat  which  contained  a  watch.  The  trial  court  refused  to  give 
the  following  instructions:  — 

"The  defendant  is  charged  with  robbing  one  Oliver  Scott  of  one 
overcoat  and  one  watch.  If  you  find  from  the  evidence  that  at  the 
'june  of  the  taking  of  said  coat  the  watch  was  in  the  pocket  of  the  coat, 
,  snd  that  the  defendant  did  not  know  it  was  there,  but  afterwards 
i'ound  it  there,  then  he  could  not  be  charged  with  the  intent  to  rob 
Hm  of  the  watch,  and  the  fact  that  the  watch  was  afterwards  found 
on  the  person  of  the  defendant  and  in  his  possession,  is  not  sufficient 
to  warrant  you  in  finding  him  guilty  of  the  robbery  of  the  watch." 

The  appellate  court  said:  "  It  will  not  be  seriously  contended  that 
the  above  instruction  states  the  law  correctly.  The  party  took  the 
coat  which  contained  a  watch,  and  appropriated  all  the  property 
to  his  own  use.  There  was  but  one  act,  and  the  party  committing 
it  is  liable  for  all  the  property  taken  by  him.  The  instruction  was 
therefore  properly  refused." 

United  States  v.  Lee,  4  Cranch,  C.  C.  446.  If  a  person  feloniously 
takes  a  pocketbook  containing  valuable  contents,  and  is  convicted 
of  stealing  the  pocketbook,  he  may  not  thereafter  be  convicted  of 
stealing  the  contents. 

In  3  Greenleaf  on  Evidence,  §  21,  the  learned  author  says:  "Where 
the  law  enacts  the  forfeiture  of  a  ship  having  smuggled  goods  on 
board,  and  such  goods  are  secreted  on  board  by  some  of  the  crew, 
the  owners  and  officers  being  alike  innocently  ignorant  of  the  fact, 
yet  the  forfeiture  is  incurred,  notwithstanding  their  ignorance." 


SECT.   II.]  BRUMAGIM   V.    BRADSHAW.  41 


SECTION  2. 
TAKING  POSSESSION  OF  LAND. 


BRUMAGIM  V.  BRADSHAW. 

39  California,  24.    1870. 

This  action  was  originally  brought  by  Robert  Dyson.  He  died, 
pending  the  action,  and  Brumagim  was  duly  substituted  as  plaintiff 
in  his  stead. 

The  plaintiff  alleged  that  Dyson  had  been  in  possession  of  a  certain 
tract  of  land  called  the  Potrero,  and  that  the  defendants  had  un- 
lawfully entered  upon  that  land. 

Crockett,  J.  At  the  instance  of  the  plaintiff,  the  court  gave 
twelve  instructions  to  the  jury,  the  second  of  which  is  in  the  follow- 
ing words :  — 

"If  the  jury  are  satisfied  from  the  evidence  given  in  this  cause, 
that  George  Treat  entered  upon  and  inclosed  the  Potrero  in  the  year 
1850,  and  are  further  satisfied  that  he  then  made  a  complete  in- 
closure  of  the  same,  and  that  such  inclosure  was  sufficient  to  turn 
and  protect  stock,  and  that  he  actually  used  such  inclosure  for  that 
purpose  up  to  the  time  of  the  alleged  conveyance  to  Dyson,  and  that 
he  deeded  the  same  to  Dyson,  and  that  the  land  was  used  by  Dyson 
subsequent  thereto,  for  the  purpose  of  pasturage,  and  that  the 
land  was  suitable  for  pasturage;  and  that  the  defendants,  or  either 
of  them  who  have  answered,  or  those  under  whom  they  claim,  en- 
tered adversely  and  subsequent  to  the  completion  of  said  inclosure, 
and  while  the  said  land  was  being  so  used  by  said  Treat  prior,  and, 
by  said  Dyson,  after  said  conveyance,  you  will  find  for  the  plaintiff 
against  such  defendant,  or  defendants,  provided  such  defendant, 
or  defendants,  was  occupying  the  premises  at  the  time  of  the  com- 
mencement of  this  suit." 

This  instruction  is  objected  to  by  the  defendants  as  wholly  unau- 
thorized by  the  testimony,  and  calculated  to  mislead  the  ]vivy. 

There  is  no  contrariety  in  the  evidence  as  to  the  natural  features 
of  the  Potrero,  nor  as  to  the  acts  performed  by  Treat  or  Dyson, 
which,  it  is  claimed,  amounted,  in  law,  to  an  inclosure  and  to  the 
actual  possession  of  the  land.  The  testimony  shows  the  Potrero  to 
be  a  peninsula,  containing  about  one  thousand  acres;  bounded  on 
the  north  by  Mission  creek  and  bay,  on  the  east  by  the  bay  of  San 
Francisco,  on  the  south  by  the  same  bay  and  Precita  creek,  and  on 
the  west  by  a  stone  wall  and  ditch,  running  from  Mission  creek 


A2  BRUMAGIM    V.    BRADSHAW.  [CHAP.  I. 

on  the  north  to  Precita  creek  on  the  south,  across  the  neck  of  the 
peninsula.  It  further  appears  that  the  wall  and  ditch  were  ancient 
works,  probably  built  by  the  priests  of  the  adjoining  Mission  of 
Dolores  at  an  early  day;  and  that  in  1850  they  had  become  consider- 
abl}^  dilapidated,  so  as  no  longer  to  prevent  the  ingress  and  egress  of 
cattle;  that  John  Treat,  or  George  Treat,  or  the  two  jointly,  in  the 
summer  or  autumn  of  1850,  repaired  the  wall  and  ditch,  so  as  that, 
thereafter,  it  was  sufficient  to  turn  cattle;  that  they  erected  a  gate 
in  the  wall,  through  which  admission  was  had  to  the  Potrero,  and 
a  small  corral,  for  herding  cattle,  inside  the  wall,  together  with  a 
shanty,  in  which  the  gate-keeper  resided;  that,  immediately  after 
the  wall  was  repaired  and  the  gate  erected,  they  commenced  to 
receive  horses  for  pasturage  and  used  the  Potrero  for  that  purpose 

—  having,  at  times,  several  hundred  head  of  horses  pasturing  there 
for  hire ;  that,  whilst  the  land  was  being  thus  used,  John  Treat  relin- 
quished to  George  Treat  all  his  interest  in  the  premises,  who  there- 
after continued  to  use  the  land  for  pasturage,  as  it  had  before  been 
used,  until  February,  1852,  when  he  conveyed,  by  deed,  to  Dj'son, 
all  his  interest  in  the  property;  and  thereafter  Dyson  used  the  land 
for  pasturage  up  to  the  time  when  the  defendants  entered;  that  the 
wall  and  ditch,  together  with  the  creeks  and  bay,  formed  an  inclosure 
sufficient  to  protect  and  turn  cattle;  that,  in  1850,  and  for  several 
years  thereafter,  the  Potrero  afforded  grass  suitable  for  pasturage. 

This  brings  us  to  the  consideration  of  what  we  deem  to  be  the 
most  important  and  difficult  point  in  the  case.  We  assume  that  the 
court,  in  the  instruction  on  which  we  have  been  commenting,  clearly 
intended  to  say  to  the  jury  —  and  that  the  jury  so  understood  it 

—  that  if  Treat  repaired  the  wall  and  ditch,  and  if  these,  together 
■s\ath  the  creeks  and  waters  of  the  bay,  formed  a  sufficient  inclosure 
to  turn  cattle,  and  if  the  land  was  suitable  for  pasturage,  and  was 
used  by  Treat  and  afterwards  by  Dyson  for  that  purpose,  up  to  the 
time  of  the  entry  by  the  defendants,  without  title,  that,  in  that 
event,  it  resulted,  as  a  conclusion  of  law,  that  there  had  been  estab- 
lished in  Dj'son  such  a  possessio  pedis  as  entitled  the  plaintiff  to 
recover.  For  the  reasons  already  stated,  we  must  assume  that  the 
facts  referred  to  in  the  instruction  were  satisfactorily  proved.  But 
did  the  court  draw  a  correct  conclusion  of  law  from  these  facts? 
Conceding  every  fact  hj^Dothetically  stated  in  the  instruction  to  have 
been  proved.  Did  Dyson  have  such  a  possessio  pedis  as  entitled  him 
to  recover?  This  court  has  repeatedly  had  occasion  to  define  what 
constitute  such  a  possession;  and,  under  ordinary  conditions,  there 
is  but  little  difficulty  in  applying  the  law  to  the  facts.  In  Coryell  v. 
Cain,  16  Cal.  573,  which  is  a  leading  case  in  this  State  on  that  point, 
we  define  actual  possession  to  be  "a,  subjection  to  the  will  and  do- 
minion of  the  claimant,  and  it  is  usually  evidenced  by  occupation, 


SECT.  II.]  BRUMAGIM    V.    BRADSHAW.  43 

by  a  substantial  inclosure,  by  cultivation,  or  by  appropriate  use, 
according  to  the  particular  locality  and  quality  of  the  property."  In 
Plume  V.  Seward,  4  Cal.  96,  it  is  said  that  to  maintain  an  action  on 
the  ground  of  prior  possession,  "there  must  be  an  actual  bona  fide 
occupation,  a  possessio  pedis,  a  subjection  to  the  will  and  control,  as 
contradistinguished  from  the  mere  assertion  of  title  and  the  exercise 
of  casual  acts  of  ownership,  such  as  recording  deeds,  paying  taxes," 
etc.  In  Wolfv.  Baldivin,  19  Cal.  313, in  stating  what  kind  of  ''actual 
occupation"  was  required  under  the  Van  Ness  Ordinance,  the  Court 
says  it  was  a  "possession  which  is  accompanied  with  the  real  and 
effectual  enjoyment  of  the  property.  It  is  the  possession  which  fol- 
lows the  subjection  of  the  property  to  the  will  and  dominion  of  the 
claimant  to  the  exclusion  of  others;  and  this  possession  must  be  evi- 
denced by  occupation,  or  cultivation,  or  other  appropriate  use,  accord- 
ing to  the  locality  and  character  of  the  particular  premises.  ...  It 
must,  in  other  words,  be  an  open,  unequivocal,  actual  possession  — 
notorious,  apparent,  uninterrupted  and  exclusive  —  carrying  vdih 
it  marks  and  evidences  of  ownership,  which  apply  in  ordinary  cases 
to  the  possession  of  real  property." 

But  we  need  not  multiply  authorities  on  a  point  concerning  which 
there  can  be  little  or  no  difference  of  opinion.  The  only  difficulty 
lies  in  the  application  of  these  principles  to  the  case  at  bar.  It  is 
clearly  established,  both  by  reason  and  authority,  that  the  acts  of 
ownership  and  dominion  over  land,  which  may  be  sufficient  to  con- 
stitute an  actual  possession,  vary  according  to  the  condition,  size 
and  locality  of  the  tract.  If  it  contain  but  one  acre,  and  have  upon 
it  a  valuable  quarry  of  stone  or  marble,  and  be  not  adapted  to  any 
other  use  than  as  a  quarry,  and  if  it  be  openly  claimed  and  actually 
and  notoriously  used  for  that  purpose,  for  a  reasonable  time,  this 
might  be  such  an  act  of  dominion  over  it  as  to  establish  an  actual 
possession,  even  though  there  was  no  inclosure  or  residence  upon  it. 
So  if  it  be  a  small  parcel,  containing  a  mine,  the  working  of  the  mine, 
in  the  usual  manner,  might  establish  an  actual  possession  at  common 
law,  without  the  aid  of  our  mining  laws  and  in  the  absence  of  any 
inclosure.  But  if  the  tract  contain  one  thousand  acres,  with  a  mine 
or  a  quarry  on  one  margin  of  it,  no  one  would  maintain  that  the  mere 
working  of  the  mine  or  quarry,  without  other  acts  of  owTiership, 
would  establish  a  possession  of  the  whole  tract.  This  proposition 
is  well  illustrated  by  the  case  of  Ewing  v.  Burnet,  11  Pet.  41,  in  which 
the  contest  related  to  a  rugged  lot  in  the  city  of  Cincinnati,  only  val- 
uable for  the  sand  and  gravel  which  it  afforded  for  the  use  of  the 
inhabitants.  The  lot  was  not  inclosed  or  inhabited;  but  the  party 
who  claimed  it  resided  in  the  vicinity,  and  for  a  series  of  years  sold 
sand  and  gravel  from  it,  issued  licenses  to  others  to  dig  sand  and 
gravel  there  and  sued  trespassers  upon  it.  The  Supreme  Court  held 
these  acts  of  dominion  to  be  sufficient  to  establish  an  adverse  pes- 


4A  BRUMAGIM    V.    BRADSHAW.  [CHAP.  I. 

session.  In  delivering  the  opinion  of  the  court,  Justice  Baldwin  says: 
"Neither  actual  occupation,  cultivation  or  residence  are  necessary 
to  constitute  actual  possession,  when  the  property  is  so  situated  as 
not  to  admit  of  any  permanent,  useful  improvement ;  and  the  con- 
tinued claim  of  the  party  has  been  evidenced  by  public  acts  of  owner- 
ship, such  as  he  would  exercise  over  property  which  he  claimed  in 
his  own  right,  and  would  not  exercise  over  property  which  he  did  not 
claim," 

The  same  principle  might  be  illustrated  by  numerous  examples. 
Acts  of  dominion  over  a  town  lot,  which  would  be  sufficient  to  es- 
tablish an  actual  possession,  might  be  wholly  inadequate  to  that 
end,  as  applied  to  a  tract  of  one  thousand  acres;  and,  on  the  other 
.hand,  the  herding  of  cattle,  for  a  reasonable  time,  on  a  tract  of  one 
hundred  acres,  suitable  only  for  that  purpose,  and  accompanied  by 
a  claim  of  title,  might,  under  certain  circumstances,  establish  pos- 
session of  it;  whilst  the  pasturing  of  cattle  on  a  town  lot,  suitable 
only  for  building  purposes,  would  be  wholly  insufficient.  The  general 
principle  which  underlies  all  this  class  of  cases  is,  that  the  acts  of 
dominion  must  be  adapted  to  the  particular  land,  its  condition, 
locality  and  appropriate  use.  The  philosophy  of  the  rule  is,  that  by 
such  acts  the  party  proclaims  to  the  public  that  he  asserts  an  exclusive 
ownership  over  the  land,  and  the  acts  which  he  performs  are  in  har- 
mony with  his  claim  of  title.  Hence  they  must  be  such  as  to  give 
notice  to  the  public;  or,  in  the  language  of  Justice  Baldwin,  in  Wolf 
v.  Baldwin,  supra,  it  must  be  "an  open,  unequivocal,  actual  pos- 
session —  notorious,  apparent,  uninterrupted  and  exclusive  —  carry- 
ing with  it  the  marks  and  evidences  of  ownership." 

In  this  case  the  court  held,  as  a  conclusion  of  law,  that  by  repair- 
ing the  wall  and  ditch,  and  using  the  land  for  pasturage,  if  it  was 
suitable  for  that  purpose,  and,  if  the  inclosure  was  sufficient  to  turn 
cattle,  Dyson  did  all  that  was  necessary  to  notify  the  public  of  his 
claim,  and  to  establish  an  actual  possession  in  law. 

If  Treat  had  inclosed  the  Potrero  by  a  fence  or  ditch  entirely 
around  it,  and  sufficient  to  turn  cattle,  it  would  not  admit  of  dis- 
cussion, that,  by  the  inclosure  alone,  and  without  other  acts  of 
dominion,  he  would  have  established  an  actual  possession  of  the 
land.  An  inclosure  of  that  character  is,  in  itself,  sufficient  proof  of 
an  actual  possession.  But  it  is  so,  only  because  the  erection  of  the 
artificial  barrier  is  an  open,  notorious  act  of  dominion,  proclaiming 
in  unmistakable  terms  to  the  public  that  the  land  is  appropriated 
and  set  apart  from  the  adjoining  lands  for  the  exclusive  use  of  the 
person  who  erected  the  barrier.  A  mere  intention  to  occupy  land, 
however  openly  proclaimed,  is  not  possession.  The  intention  must 
be  carried  into  actual  execution  by  such  open,  unequivocal  and 
notorious  acts  of  dominion,  as  plainly  indicate  to  the  public  that  the 
person  who  performs  them  has  appropriated  the  land  and  claims 


SECT,  II.]  BRUMAGIM    V.    BRADSHAW.  45 

the  exclusive  dominion  over  it.  Anything  short  of  this  is  not  what 
the  law  denominates  actual  possession.  A  substantial  inclosure. 
erected  by  the  party  around  the  entire  tracts,  is  such  an  act  of  do- 
minion, and  has  been  held  by  the  courts  to  be  of  itself  sufficient  to 
establish  the  possession.  Nor  can  it  be  doubted  that  a  sufficient  in- 
closure, partly  by  artificial  and  partly  by  natural  barriers,  may,  un- 
der certain  circumstances,  establish  an  actual  possession.  If,  for 
example,  a  tract  be  inclosed  on  three  of  its  sides  by  a  substantial 
fence,  and  the  fourth  side  front  upon  the  ocean,  or  a  deep  river,  or 
a  precipitous  cliff,  the  erection  of  the  fence  would,  doubtless,  clearly 
enough  indicate  to  the  public  that  the  land  was  appropriated;  or,  if 
there  be  a  small  peninsula,  containing  but  a  few  acres,  a  fence  across 
the  neck  of  it  might  accomplish  the  same  result.  But  it  is  evident 
that  where  natural  barriers  form  much  the  greater  portion  of  the 
inclosure,  the  rule  to  which  we  have  adverted  is  not  of  universal 
application,  but  must  be  varied  according  to  the  circumstances  of 
each  particular  case.  A  fence  or  ditch  across  the  neck  of  a  small  penin- 
sula could  not  well  escape  observation,  and  would  bear  such  a  rela- 
tion to  the  land,  and  to  the  natural  use  of  it,  as  to  indicate  clearly  to 
every  one  who  saw  it,  that  it  was  intended  to  segregate  the  peninsula 
from  the  adjoining  lands,  and  that  it  had  been  appropriated  by  the 
person  erecting  the  barrier.  As  was  said  by  the  court,  in  Wolf  v. 
Baldwin,  it  would  be  such  an  act  of  dominion  as  to  carry  with  it 
"the  marks  and  evidences  of  owmership,  which  apply,  in  ordinary 
cases,  to  the  possession  of  real  property."  But  the  same  rule  could  not, 
without  absurdity,  be  applied  to  all  peninsulas,  however  large  and 
howsoever  situate.  The  city  of  San  Francisco  is  situate  on  a  penin- 
sula, containing  many  square  leagues  of  land ;  at  the  narrowest  point 
of  which,  in  the  vicinity  of  Redwood  City,  it  is  but  a  few  miles  across 
the  neck  from  the  bay  of  San  Francisco  to  the  shore  of  the  ocean. 

If  the  rule  we  are  discussing  was  of  universal  application,  a  fencC; 
from  Redwood  City  to  the  seashore,  including  the  entire  peninsula, 
would  establish  an  actual  possession  —  a  possessio  pedis  of  the  whole 
of  it ;  and  if  the  rule  were  universal  and  without  qualification,  the  same 
result  would  follow  if  the  peninsula  were  ten  times  as  large  as  it  is. 
The  courts  should  hesitate  long  before  establishing  a  rule  of  such 
universal  application,  as  to  lead  to  these  absurd  results.  But  such 
cases  do  not  come  within  the  reason  of  the  rule  which  permits  a 
party,  under  certain  circumstances,  to  adopt  and  avail  himself  of 
natural  obstructions  as  a  part,  or,  it  may  be,  the  whole  of  an  inclos- 
ure, in  making  out  a  case  of  actual  possession.  If  the  peninsula  be 
so  large,  or,  for  any  reason,  be  so  situated  that  it  would  be  contrary 
to  the  experience  of  mankind,  and  our  observation  of  the  motives 
which  govern  men  in  their  daily  pursuits,  that  any  one  should  seek 
to  acquire  exclusive  dominion  over  it  by  means  of  a  fence  or  ditch, 
then  it  could  not  be  held,  without  an  absurdity,  that  the  fence  or 


46  BRUMAGIM   V.    BRADSHAW.  [CHAP.  I. 

ditch  should,  in  law,  be  deemed  to  be,  in  itself,  such  an  act  of  do- 
minion as  to  establish  a  possessio  pedis.  The  whole  theory  of  a  pos- 
sessio  pedis  rests  upon  the  assumption  that  the  acts  of  dominion 
which  establish  it,  are  such  open,  notorious  acts  of  owTiership,  as 
usually  accompany  the  possession  of  real  property,  and  naturally 
spring  from  a  claim  of  exclusive  dominion.  They  must  not  only 
carry  with  them  the  usual  indicia  of  ownership,  but  they  must  be 
open,  notorious  and  unequivocal,  so  as  to  notify  the  public  that  the 
land  is  appropriated.  If  these  be  not  necessary  ingredients  in  a  pos- 
sessio pedis,  and  if  a  fence  across  the  neck  of  a  peninsula,  however 
large  or  howsoever  situate,  be  all  that  is  requisite  to  establish  such 
a  possession,  no  reason  is  perceived  why  a  fence  across  the  isthmus 
of  Darien  might  not  be  held  to  establish  a  possession  in  fact  of  the 
continent  of  North  America.  These  extreme  cases  are  referred  to 
only  to  illustrate  the  proposition  that  where  the  inclosure  consists 
partly  of  natural  and  partly  of  artificial  barriers,  or  wholly  of  natu- 
ral obstructions,  as  in  the  case  of  an  island,  it  does  not  follow,  as  a 
conclusion  of  law,  that  every  such  inclosure,  which  is  sufficient  to 
turn  cattle,  establishes,  of  itself,  a  possessio  pedis;  but  it  must  depend 
on  the  particular  circumstances  of  each  case,  considering  the  size 
of  the  tract,  its  peculiar  condition  and  the  relative  proportions  which 
the  natural  barriers  bear  to  the  artificial,  and  the  greater  or  less 
notoriety  which,  under  all  the  circumstances  which  surround  the 
tract,  the  artificial  barriers,  or  other  acts  of  ownership,  exercised 
over  the  property,  give  to  the  claim  of  dominion. 

To  avoid  misconception  on  this  point,  we  will  illustrate  the  pro- 
position by  an  example :  It  is  a  well-known  fact  that  the  island  of 
Santa  Catalina,  bang  off  the  coast  of  this  State,  contains  about  fifty 
thousand  acres,  and  is  surrounded  by  the  waters  of  the  Pacific  Ocean, 
which,  of  course,  form  a  complete  barrier  against  cattle.  In  other 
words,  it  is  completely  inclosed  by  impregnable,  natural  barriers. 
If  one  should  desire  to  acquire  the  actual  possession,  the  possessio 
pedis,  of  this  whole  island,  it  would  not  be  necessary  to  erect  arti- 
ficial obstructions  around  it,  for  nature  has  already  inclosed  it  more 
securely  than  man  could  do.  He  might  adopt  these  natural  obstruc- 
tions as  his  inclosure,  and  they  would  doubtless  form  an  important 
link  in  the  chain  of  facts  tending  to  establish  a  possessio  pedis;  but  he 
must  perform  other  and  sufficient  acts  of  owniership  to  render  his 
claim  of  exclusive  dominion  apparent  and  notorious.  If  he  should 
go  upon  the  island  and  erect  a  hut  in  the  center  of  it,  and  proclaim, 
in  words,  that  he  claimed  the  whole  island,  would  this,  of  itself,  es- 
tablish in  him  the  actual  possession  of  the  whole?  No  respectable 
court  would  uphold  so  preposterous  a  claim.  Nor  would  it  materially 
strengthen  his  claim  of  exclusive  dominion,  if  it  should  appear  that 
he  pastured  a  few  cattle  or  cultivated  a  patch  of  land  on  the  island, 
for  the  obvious  reason  that  these  trivial  acts  of  ownership  are  not  the 


SECT.  II. J  BRUMAGIM    V.    BRADSHAW.  47 

usual  and  natural  means  by  which  exclusive  dominion  is  acquired  or 
exercised  over  so  large  a  body  of  land,  similarly  situated,  and  would 
tend,  in  a  very  small  degree,  to  give  notoriety  to  his  claim,  and  to 
inform  the  public  that  the  whole  island  was  appropriated  for  his 
exclusive  use.  On  the  contrary,  if  he  should  settle  upon  the  island 
with  the  intention  to  acquire  the  possession  of  it,  should  pasture 
large  herds  of  cattle  upon  it,  allowing  them  to  roam  all  over  it,  or 
cultivate  extensive  jQelds  on  various  portions  of  it,  should  prevent 
others  from  landing  on  it,  should  cut  timber  or  open  mines  and 
quarries  on  many  remote  parts  of  it,  these  would  probably  be  held 
to  be  such  acts  of  dominion  as  to  establish  a  possessio  pedis  of  the 
whole.  If  the  island  contained  but  a  few  acres,  much  fewer  and  less 
important  acts  of  dominion  would  suffice  to  establish  the  possession, 
for  the  reason  that  they  would  sufficiently  serve  to  render  the  claim 
of  dominion  apparent  and  notorious.  The  general  principle  per- 
vading all  this  class  of  cases,  where  the  inclosure  consists  v/holly  or 
partially  of  natural  barriers,  is,  that  the  acts  of  dominion  and  owner- 
ship which  establish  a  possessio  pedis  must  correspond,  in  a  reason- 
able degree,  with  the  size  of  the  tract,  its  condition  and  appropriate 
use,  and  must  be  such  as  usually  accompany  the  o^viiership  of  land 
similarly  situated.  But,  in  such  cases,  it  is  the  peculiar  province  of 
the  jury,  under  proper  instructions  from  the  court,  to  decide  whether 
or  not  the  acts  of  dominion  relied  upon,  considering  the  size  of  the 
tract,  its  peculiar  condition  and  appropriate  use,  were  of  such  a 
character  as  usually  accompany  the  ownership  of  lands  similarly 
situated.  As  already  sta,ted,  the  erection  of  a  fence  across  the  neck 
of  a  small  peninsula,  might,  of  itself,  under  certain  circumstances, 
be  a  sufficient  act  of  dominion  to  establish  an  actual  possession.  But, 
in  such  cases,  there  can  be  no  rule  of  universal  application,  and  each 
case  must  depend  on  its  o'wtl  circumstances;  and  where  an  inclosure, 
consisting  partly  of  natural  and  partly  of  artificial  obstructions,  is 
relied  upon  as,  in  itself,  establishing  a  possessio  pedis,  it  is  the  province 
of  the  jury,  upon  all  the  proofs,  and  considering  the  quantity,  local- 
ity and  character  of  the  land,  to  decide  whether  or  not  the  artificial 
barriers  were  sufficient  to  notify  the  public  that  the  land  was  appro- 
priated, and  to  impart  to  the  claim  of  appropriation  the  notoriety 
and  indicia  of  o^vnership  which  constitute  so  important  an  element  in 
a  possessio  pedis.  But,  in  the  case  at  bar,  this  question  was  not  sub- 
mitted to  the  jury.  On  the  contrary,  the  court  instructed  tliom  that 
if  Treat  repaired  the  wall  and  ditch,  so  that  thereafter  they,  together 
with  the  waters  of  the  creeks  and  bay,  formed  an  inclosure  sufficient 
to  turn  cattle,  and  if  the  land  was  suitable  for  pasturage  and  was 
used  by  him  for  that  purpose,  and  if  Dyson  succeeded  to  the  right  of 
Treat  and  also  used  the  land  for  pasturage,  then,  that  these  acts 
established,  in  law,  a  possessio  pedis.  But,  as  already  stated,  it  was 
the  province  of  the  jury,  and  not  of  the  court,  to  decide  what  effect 


48  BRUMAGIM    V.    BRADSHAW.  [CHAP.  I. 

should  be  given  to  the  repairing  of  the  wall  and  ditch  as  an  act  of 
dominion  over  the  property;  and  whether  or  not  this  act,  in  connec- 
tion with  the  pasturing  of  cattle  on  the  land,  considering  its  quan- 
tity, locality  and  character,  was  sufficient,  under  all  the  circum- 
stances, to  notify  the  public  that  the  land  was  appropriated;  and  that 
Treat,  first,  and  Dyson,  as  his  successor,  claimed  and  exercised  the 
exclusive  dominion  over  it.  The  court  should  have  instructed  the 
jury,  that,  if  all  the  facts  hypothetically  stated  in  the  second  instruc- 
tion were  true,  it  was  the  province  of  the  jury  to  decide,  considering 
the  quantity,  quality  and  character  of  the  land,  whether  or  not  these 
acts  of  dominion  were  sufficient  and  had  the  effect,  upon  the  facts 
proved,  to  give  notice  to  the  public  that  Treat,  first,  and  Dyson,  as 
his  successor  in  interest,  had  appropriated  the  land  and  claimed  the 
exclusive  dominion  over  it;  and  if  this  be  answered  in  the  affirmative, 
then,  that  there  had  been  established  in  Treat,  first,  and,  afterwards 
in  Dyson,  an  actual  possession.  The  vice  in  the  instruction  which  was 
given  is,  that  the  court  assumed,  as  a  conclusion  of  law,  from  the 
facts  hypothetically  stated,  that  if  Treat  and  Dyson  performed  these 
acts,  they  had  done  all  that  was  necessary  to  appropriate  the  land, 
and  to  give  notice  by  their  acts  to  the  public,  that  they  claimed  the 
exclusive  dominion  over  it ;  whereas,  as  we  have  seen,  it  was  the  pe- 
culiar province  of  the  jury  to  decide  upon  the  sufficiency  of  the  acts 
to  impart  the  requisite  notice  to  the  public,  and  whether  or  not,  under 
all  the  circumstances,  these  acts  were  such  as  carried  with  them  "the 
marks  and  evidences  of  ownership,  which  apply,  in  ordinary  cases, 
to  the  possession  of  real  property." 

For  these  reasons,  the  judgment  should  be  reversed  and  a  new 
trial  ordered. 

Note.  —  In  Brooks  v.  Bniyn,  18  111.  539,  542,  the  court  said:  "It 
is  impossible  to  specify  the  particular  acts,  under  everj^  condition, 
which  would  constitute  actual  possession  of  land,  as  against  a  stranger 
or  trespasser.  They  are  as  various  as  the  uses  to  which  land  is 
adapted.  As  a  general  rule,  it  is  sufficient  if  the  land  is  appropriated 
to  individual  use  in  such  manner  as  to  apprise  the  commimity,  or 
neighborhood  in  its  locality,  that  the  land  is  in  the  exclusive  use  and 
enjoyment  of  another." 

In  Jackson  v.  Schoonmaker,  2  Johns.  (N.Y.)  230,  the  title  to  the 
land  in  question  was  in  the  plaintiff,  unless  the  defendant  had  ac- 
quired title  by  adverse  possession.  The  defendant  proved  that,  there 
being  a  rumour  of  the  plaintiff's  claim,  the  part  claimed  by  him  had 
been  enclosed  "by  a  possession  fence,  which  was  made  by  trees 
felled,  and  lapping  one  upon  another,"  and  that  such  fence  had  ever 
since  been  kept  up.  Kent,  C.  J.,  said:  "This  mode  of  taking  posses- 
sion is  too  loose  and  equivocal.  There  must  be  a  real  and  substantial 
inclosure,  and  actual  occupancj^  a  possessio  pedis,  which  is  definite, 


SECT.  II.]  PLUME    V.    SEWARD.  49 

positive  and  notorious,  to  constitute  an  adverse  posssesion,  when  that 
is  the  only  defense,  and  is  to  countervail  a  legal  title." 


PLUME  V.  SEWARD. 

4  California,  94.     1S54. 

Mr.  Ch.  J.  Murray  delivered  the  opinion  of  the  Court.  Mr.  J. 
Heydenfeldt  concurred. 

This  was  an  action  of  ejectment  to  recover  a  lot  in  the  city  of 
Marysville.  On  the  trial  of  the  cause,  the  plaintiff  proved  that 
Covillaud  and  others,  from  whom  he  claimed,  were,  in  the  year  1849, 
in  possession  of  a  tract  of  land,  Ijnng  between  the  Yuba  River  and 
a  slough,  which  was  enclosed  by  a  ditch  on  each  side,  running  from 
the  river  to  the  slough ;  and  had  within  said  enclosure  a  trading  post, 
a  corral  and  a  wheat  field.  The  lot  in  dispute  was  not  a  portion  of  the 
wheat  field  or  corral,  but  was  included  in  the  premises  thus  designated 
or  enclosed  by  them;  their  right  of  possession  remaining  unquestioned 
and  undisturbed. 

This  land  was  afterwards  laid  out  into  lots  and  streets,  upon  the 
official  map  of  the  city  of  Marysville,  many  of  which  were  sold  by 
said  Covillaud  and  others. 

There  is  no  pretence  of  an  abandonment  of  the  premises  thus 
enclosed;  but  evidence  that  Covillaud  continued  to  assert  title  and 
exercise  acts  of  owTiership  over  them. 

On  the  trial  of  the  cause,  the  court  rendered  a  judgment  of  non- 
suit, on  the  ground  that  the  plaintiff  had  not  shown  such  a  posses- 
sion as  entitled  him  to  recover. 

At  the  last  term  of  this  court  we  decided,  possession  was  prima 
facie  evidence  of  title,  and  sufficient  to  maintain  ejectment.  What 
acts  of  ownership  were  necessary  to  constitute  possession  was  not 
involved  in  that  decision. 

From  a  careful  examination  of  the  authorities,  I  am  satisfied, 
there  must  be  an  actual  bona  fide  occupation,  a  possessio  pedis,  a 
subjection  to  the  will  and  control,  as  contradistinguished  from  the 
mere  assertion  of  title,  and  the  exercise  of  casual  acts  of  o"UTiership, 
such  as  recording  deeds,  paying  taxes,  etc. 

This  being  the  case,  it  becomes  necessary  to  inquire,  if  a  party 
who  enters  on  land  with  no  higher  claim  of  title  than  that  which  the 
law  presumes  from  his  possession,  is  entitled  to  claim  more  than  the 
quantity  thus  actually  occupied  by  him. 

This  question  has  been  frequently  decided  in  most  of  the  West- 
ern States,  where  entries  have  been  made  upon  public  lands  by  per- 
sons unable  to  reduce  the  whole  of  the  lands  to  actual  occupation 
by  fencing  and  cultivation.    These  entries  have  for  the  most  part 


50  PLUME    V.   SEWARD.  [cHAP.  I. 

been  made  by  settlers  claiming  160  acres  under  pre-emption  laws,  or 
some  local  custom  on  the  subject. 

In  many  cases  the  occupation  of  a  portion  of  the  land  and  the 
blazing  of  trees,  so  as  to  distinctly  mark  the  extent  and  boundaries 
of  the  claim,  have  been  held  to  operate  as  notice,  and  carry  the 
possession  to  the  whole  tract;  so  the  felling  of  timber  around  a  tract 
of  land,  and  the  building  of  a  brush  fence,  have  been  held  as  sufficient 
acts  of  the  party  in  occupation  of  a  part,  to  draw  after  them  the  pos- 
session of  the  land  so  enclosed. 

The  character  of  the  improvement  must,  in  a  great  measure, 
depend  upon  the  locality.  It  is  not  necessary  the  occupant  should 
cultivate  the  property  thus  claimed;  it  is  sufficient  if  it  be  sub- 
jected to  his  use  in  the  manner  pointed  out.  Neither  is  any  particu- 
lar kind  of  enclosure  required  where  a  party  is  in  possession  of  land 
marked  by  distinct  monuments  of  boundary,  whether  the  same  be 
a  natural  or  artificial  enclosure.  Claiming  title  to  the  whole  tract,  the 
possession  of  the  part  so  occupied  will  draw  after  it  the  possession 
of  the  whole. 

It  is  said  that  this  doctrine  would  give  to  Covillaud  and  others 
all  the  land  claimed  by  them  running  from  Yuba  River  to  the  moun- 
tains. We  know  nothing  of  their  claim;  but  if  they  should  establish 
their  possession  in  the  manner  already  indicated,  we  can  see  no  reason 
for  a  different  rule. 

Laying  off  the  premises  into  town  lots,  selling  the  same,  and  exer- 
cising other  acts  of  ownership  over  them,  does  not  operate  as  an  aban- 
donment, but  taken  in  connection  -^dth  previous  acts  of  ownership, 
would  rather  seem  to  strengthen  the  plaintiff's  possession. 

From  this  it  follows,  that  the  court  below  erred  in  ordering  the 
plaintiff  to  be  nonsuited.  The  evidence  of  the  character  of  the  pos- 
session, and  the  nature  of  the  enclosure,  were  before  the  jury,  and  they 
ought  to  have  been  allowed  to  pass  on  the  sufficiency  of  them. 

Judgment  reversed  with  costs  and  new  trial  ordered. 

Note.  —  In  Feirhaugh  v.  Masterson,  1  Idaho,  135,  the  plaintiffs 
went  upon  a  tract  of  land,  and  commenced  enclosing  it  with  a  fence. 
The  defendant  came  upon  the  tract,  and  the  plaintiffs  notified  him 
that  they  claimed  the  land,  pointing  out  the  fence  they  were  then 
engaged  in  building,  and  ''further  pointed  out  to  him  the  general 
boundaries  of  their  claim  as  accurately  as  they  well  could  do."  The 
plaintiffs  were  residing  on  the  tract  at  the  time.  The  defendant 
nevertheless  proceeded  to  enclose  a  tract  of  land  included  within  the 
limits  pointed  out  to  him  as  the  lines  bounding  plaintiffs'  claim.  The 
plaintiffs  continued  at  work  until  they  completed  their  fence.  The 
plaintiffs  were  held  to  have  been  in  prior  possession  of  the  land  en- 
closed by  the  defendant. 


SECT.  III.]  GILLESPIE    V.    DEW.  51 


SECTION  3. 

POSSESSION  PREDICATED  UPON  OWNERSHIP. 


GILLESPIE  V.  DEW. 

1  Stewart  (Ala.),  229.     1827. 

In  Greene  Circuit  Court,  James  Gillespie  declared  in  trespass 
against  Duncan  Dew,  that  the  defendant  broke  and  entered  his 
close,  and  cut  down  and  carried  away  sundry  timber  trees,  etc. 
General  issue.  Verdict  and  judgment  for  defendant.  On  the  trial 
the  plaintiff  proved  title  to  the  land,  and  that  the  defendant  had  cut 
timber  thereon  and  carried  it  away,  while  the  plaintiff  was  so  entitled. 
It  was  proved  that  the  plaintiff  resided  about  twenty  miles  from  the 
land.  It  did  not  appear  that  any  one  was  in  actual  possession  when 
the  timber  was  cut,  etc.  The  Circuit  Court  charged  the  jury  that, 
unless  the  evidence  shewed  that  the  plaintiff  by  himself  or  agent  was 
in  actual  possession  of  the  land,  when  the  trespass  was  committed, 
they  must  find  for  the  defendant.  To  which  the  plaintiff  excepted, 
and  here  assigned  this  matter  as  error. 

Judge  White  delivered  the  opinion  of  the  court. 

The  charge  was  in  accordance  with  the  English  authorities,  and 
with  the  decisions  in  some  of  the  States  of  the  Union.  But  in  North 
Carolina,  New  York  and  Connecticut,  it  has  been  held  that,  where 
there  is  no  adverse  possession,  he  who  has  title,  though  he  has  never 
been  in  actual  possession,  may  maintain  the  action  of  trespass. 

The  situation  of  our  country  requires  this  modification  of  the 
English  doctrine.  In  England,  almost  all  the  lands  are  occupied;  but 
here,  the  proprietor  often  lives  at  a  great  distance  from  some  of  his 
lands  which  are  not  occupied  by  tenants,  and  unless  they  can  main- 
tain this  action,  they  must  be  denied  an  important  remedy  for  in- 
juries to  their  property.  Their  right  to  this  remedy  is  sustained  by 
the  strong  argument  of  convenience,  and  by  the  respectable  authori- 
ties referred  to  by  the  counsel  for  the  plaintiff. 

We  are  of  opinion  that,  where  there  is  no  adverse  possession, 
the  title  draws  with  it  constructive  possession,  so  as  to  sustain  the 
action  of  trespass.  Let  the  judgment  be  reversed  and  the  cause  be 
remanded. 

JuJge  Gayle  not  sitting. 


52  GOFF    V.    KILTS.  [CHAP.  I. 

GOFF  V.  KILTS. 

15  WendeU  (N.Y.),  550.     1836. 

Error  from  the  Madison  common  pleas.  Kilts  sued  Goff  in  a 
justice's  court  in  trespass  for  taking  and  destroying  a  swarm  of 
bees,  and  the  honey  made  by  them.  The  swarm  left  the  hive  of  the 
plaintiff,  flew  off  and  went  into  a  tree  on  the  lands  of  the  Lenox  Iron 
Company''.  The  plaintiff  kept  the  bees  in  sight,  followed  them,  and 
marked  the  tree  into  which  they  entered.  Two  months  afterwards 
the  tree  was  cut  down,  the  bees  killed,  and  the  honey  found  in  the 
tree  taken  by  the  defendant  and  others.  The  plaintiff  recovered 
judgment,  which  was  affirmed  by  the  Madison  common  pleas.  The 
defendant  sued  out  a  ^mtH  of  error. 

By  the  Court,  Nelson,  J.  Animals /eroB  naturos,  when  reclaimed  by 
the  art  and  power  of  man,  are  the  subject  of  a  qualified  property; 
if  they  return  to  their  natural  liberty  and  vWldness,  without  the 
animus  revertendi,  it  ceases.  During  the  existence  of  the  qualified 
property,  it  is  under  the  protection  of  the  law  the  same  as  any  other 
property,  and  every  invasion  of  it  is  redressed  in  the  same  manner. 
Bees  are  ferw  naturce,  but  when  hived  and  reclaimed,  a  person  may 
have  a  qualified  property  in  them  by  the  law  of  nature,  as  well  as  the 
civil  law.  Occupation,  that  is,  hiving,  or  enclosing  them,  gives  prop- 
erty in  them.  They  are  now  a  common  species  of  property,  and  an 
article  of  trade,  and  the  wildness  of  their  nature  by  experience  and 
practice  has  become  essentially  subjected  to  the  art  and  power  of 
man.  An  unreclaimed  swarm,  like  all  other  wild  animals,  belongs  to 
the  first  occupant  —  in  other  words,  to  the  person  who  first  hives 
them;  but  if  a  swarm  fly  from  the  hive  of  another,  his  qualified  prop- 
erty continues  so  long  as  he  can  keep  them  in  sight,  and  possesses  the 
power  to  pursue  them.  Under  these  circumstances,  no  one  else  is 
entitled  to  take  them.   2  Black.  Comm.  393.   2  Kent's  Comm.  394. 

The  question  here  is  not  between  the  owmer  of  the  soil  upon  which 
the  tree  stood  that  included  the  swarm  and  the  owner  of  the  bees: 
as  to  him,  the  owTier  of  the  bees  would  not  be  able  to  regain  his  prop- 
erty, or  the  fruits  of  it,  without  being  guilty  of  trespass.  But  it  by 
no  means  follows,  from  this  predicament,  that  the  right  to  the  enjoy- 
ment of  the  property  is  lost;  that  the  bees  therefore  become  again 
ferce  naturce,  and  belong  to  the  first  occupant.  If  a  domestic  or  tame 
animal  of  one  person,  should  stray  to  the  enclosure  of  another,  the 
owner  could  not  follow  and  retake  it,  wdthout  being  liable  for  a 
trespass.  The  absolute  right  of  property,  notwithstanding,  would 
still  continue  in  him.  Of  this  there  can  be  no  doubt.  So  in  respect  to 
the  qualified  property  in  the  bees.  If  it  continued  in  the  owner  after 
they  hived  themselves,  and  abode  in  the  hollow  tree,  as  this  qualified 
interest  is  under  the  same  protection  of  law  as  if  absolute,  the  like 


SECT.  III.]  GOFF    V.    KILTS.  53 

remedy  existed  in  case  of  an  invasion  of  it.  It  cannot,  I  think,  be 
doubted,  that  if  the  property  in  the  swarm  continues  while  within 
sight  of  the  owner  —  in  other  words,  while  he  can  distinguish  and 
identify  it  in  the  air  —  that  it  equally  belongs  to  him  if  it  settles 
upon  a  branch  or  in  the  trunk  of  a  tree,  and  remains  there  under  his 
observation  and  charge.  If  a  stranger  has  no  right  to  take  the  swarm 
in  the  former  case,  and  of  which  there  seems  no  question,  he  ought 
not  to  be  permitted  to  take  it  in  the  latter,  when  it  is  more  confined 
and  within  the  control  of  the  occupant. 

It  is  said  the  owner  of  the  soil  is  entitled  to  the  tree  and  all  within 
it.  This  may  be  true,  so  far  as  respects  an  unreclaimed  swarm.  While 
it  remains  there  in  that  condition,  it  may,  like  birds  or  other  game 
(game  laws  out  of  the  question) ,  belong  to  the  owner  or  occupant  of 
the  forest,  ratione  soli.  According  to  the  law  of  nature,  where  prior 
occupancy  alone  gave  right,  the  individual  who  first  hived  the  swarm 
would  be  entitled  to  the  property  in  it;  but  since  the  institution  of 
oivil  society,  and  the  regulation  of  the  right  of  property  by  its  posi- 
tive laws,  the  forest  as  well  as  the  cultivated  field  belong  exclusively 
■;o  the  owner,  who  has  acquired  a  title  to  it  under  those  laws.  The 
natural  right  to  the  enjoyment  of  the  sport  of  himting  and  fowling, 
wherever  animals  ferce  natures  could  be  found,  has  given  way,  in  the 
progress  of  society,  to  the  establishment  of  rights  of  property  better 
defined  and  of  a  more  durable  character.  Hence  no  one  has  a  right  to 
invade  the  enclosure  of  another  for  this  purpose.  He  would  be  a  tres- 
passer, and  as  such  liable  for  the  game  taken .  An  exception  may  exist 
in  the  case  of  noxious  animals,  destructive  in  their  nature.  Mr. 
Justice  Blackstone  says,  if  a  m.an  starts  game  in  another's  private 
grounds,  and  kills  it  there,  the  property  belongs  to  him  in  whose 
ground  it  is  killed,  because  it  was  started  there,  the  property  arising 
ratione  soli.  2  Black.  Comm.  419.  But  if  animals  ferw  naturce  that 
have  been  reclaimed,  and  a  qualified  property  obtained  in  them, 
escape  into  the  private  grounds  of  another  in  a  way  that  does  not 
restore  them  to  their  natural  condition,  a  different  rule  obviously 
applies.  They  are  then  not  exposed  to  become  the  property  of  the 
first  occupant.  The  right  of  the  owner  continues,  and  though  he  can- 
not pursue  and  take  them  without  being  liable  for  a  trespass,  still 
this  difficulty  should  not  operate  as  an  abandonment  of  the  animals 
to  their  former  liberty.  The  rights  of  both  parties  should  be  regarded, 
and  reconciled  as  far  as  is  consistent  with  a  reasonable  protection 
of  each.  The  cases  of  Heermance  v.  Vernay,  6  Johns.  R,  5,  and  Blake 
V.  Jerome,  14  id.  406,  are  authorities  for  saving,  if  any  were  wanted, 
that  the  inability  of  the  owner  of  a  personal  chattel  to  retake  it  v/hile 
on  the  premises  of  another,  without  committing  a  trespass,  does  not 
impair  his  legal  interest  in  the  property.  It  only  embarrasses  the  use 
or  enjoyment  of  it.  The  owner  of  the  soil,  therefore,  acquiring  no 
right  to  the  property  in  the  bees,  the  defendant  below  cannot  protect 


54  GOFF   V,    KILTS.  [CHAP.  I. 

himself  by  showing  it  out  of  the  plaintiff  in  that  way.  It  still  continues 
in  him,  and  draws  after  it  the  possession  sufficient  to  maintain  this 
action  against  a  third  person,  who  invades  it  by  virtue  of  no  other 
claim  than  that  derived  from  the  law  of  nature.  This  case  is  dis- 
tinguishable from  the  cases  of  Gillet  v.  Mason,  7  Johns.  R.  16,  and 
Ferguson  v.  Miller,  1  Cowen,  243.  The  first  presented  a  question 
between  the  finder  and  a  person  interested  in  the  soil;  the  other 
between  two  persons,  each  claiming  as  the  first  finder.  The  plaintiff 
in  the  last  case,  though  the  first  finder,  had  not  acquired  a  qualified 
property  in  the  swarm  according  to  the  law  of  prior  occupancy.  The 
defendant  had.  Besides,  the  swarm  being  unreclaimed  from  their 
natural  liberty  while  in  the  tree,  belonged  to  the  owner  of  the  soil 
ratione  soli.  For  these  reasons,  I  am  of  opinion  that  the  judgment  of 
the  court  below  should  be  affirmed. 

Judgment  affirmed. 


BECT.  IV.]  HAMPTON    V.    BROWN.  55 


SECTION  4. 

SEPARATION  OF  THE  CUSTODY  OR  USE  FROM  THE 

POSSESSION. 


HAMPTON  V.  BROWN. 

13  Iredell,  Law  (N.C.),  18.    1851. 

Appeal  from  the  Superior  Court  of  Law  of  Davidson  County, 
at  the  Fall  Term,  1851,  his  Honor  Judge  Ellis  presiding. 

This  is  an  action  of  trover  for  a  horse,  and  was  tried  on  the  general 
issue.  The  plaintiff  was  deputy  sheriff,  and  had  a  fieri  facias  on  a 
judgment  in  favor  of  one  Hoffman  against  one  Home,  by  virtue  of 
which  he  seized  the  horse.  He  did  not,  however,  take  the  horse  out 
of  the  possession  of  Home,  and  the  latter  sold  it  to  the  defendant 
a  few  days  afterwards,  and,  upon  demand  by  the  plaintiff,  the  de- 
fendant refused  to  give  the  horse  up.  The  counsel  for  the  defendant 
insisted  that  the  action  would  not  lie,  because  the  plaintiff  did  not 
keep  the  possession  of  the  horse,  but  left  it  with  Home,  from  whom 
the  defendant  purchased;  and,  also,  because  the  defendant,  if  liable 
at  all,  was  liable  at  the  suit  of  the  sheriff,  and  not  of  the  plaintiff. 
But  the  Court  instructed  the  jury,  that  upon  these  facts  the  plaintiff 
was  entitled  to  recover;  and,  after  a  verdict  and  judgment  against 
him,  the  defendant  appealed. 

RuFFiN,  C.  J.  Although  a  sheriff  may  have  trover,  or  trespass 
for  goods  seized  in  execution,  which  are  taken  by  another,  yet  his 
deputy  cannot.  The  reason  why  the  sheriff  has  the  action,  is,  that 
the  debtor  is  discharged,  and  the  sheriff  becomes  liable  to  the  value 
of  the  goods,  and  therefore  the  law  vests  the  property  in  him.  Wil- 
hraham  v.  Snow,  2  Saund.  47.  But  the  law  charges  the  deputy  wath 
no  duty  to  the  creditor.  If  he  makes  defaults  in  serving  the  execu- 
tion, he  cannot  be  sued  for  it,  but  his  principal  only.  On  the  contrary, 
when  he  takes  goods  on  execution  the  sheriff  becomes  answerable 
for  their  value  to  the  creditor,  and  hence  the  property  vests  in  the 
sheriff  and  not  in  the  deputy.  It  was  suggested  that  the  deputy  held 
as  the  bailee  of  the  sheriff,  and  thus  had  a  special  property.  He,  how- 
ever, is  not  a  bailee,  in  the  sense  of  having  a  possession  of  his  0"wn, 
but  he  is  merely  the  servant  of  his  superior  and  holds  for  him.  The 
plaintiff,  therefore,  has  no  property  in  the  horse,  and  cannot  have 
this  action. 

Per  Curiam.  Judgment  reversed,  and  venire  de  novo. 


56  BLOSS    V.    HOLMAN.  [cHAP.  I. 

Note.  —  In  Hopkinson  v.  Gibson,  2  Smith,  202,  Lord  Ellen- 
borough  said:  "You  cannot  make  my  servant,  whose  possession 
is  my  possession,  my  bailee."  But  an  employee  may  be  a  bailee,  and 
--HTjTa  mere  servant.  Harris  v.  Smith,  3  S.  &  R.  (Pa.)  20. 

In  Hickie  v.  Starke,  1  Peters  (U.S.),  94,  the  court  was  considering 
the  question  whether  the  plaintiff  was  an  "actual  settler"  on  land 
within  the  meaning  of  that  phrase  as  used  in  the  act  of  Cession  by 
Georgia  to  the  United  States.  Marshall,  C.  J.,  said  (p.  98):  "The 
court  is  disposed  to  think  that  a  settlement  made  on  the  land  by 
another  person,  who  cultivated  it  for  the  proprietor,  would  be  suffi- 
cient, though  the  proprietor  should  not  reside  in  person  on  the  estate 
or  within  the  territory." 


<? 


BLOSS  V.  HOLMAN. 

Owen,  52.     1587. 


John  Bloss  brought  an  action  of  trespass,  quare  vi  et  armis,  for 
xi        taking  of  his  goods,  against  Holman,  and  the  defendant  pleaded  not 
vk       guilty,  and  the  jury  gave  a  special  verdict,  namely,  that  the  plaintiff 
/A         at  the  time  of  the  trespass  was  of  the  Mystery  of  the  Mercers,  and 
that  at  that  time  the  defendant  was  his  servant,  and  put  in  trust  to 
-J  sell  his  goods  and  merchandises  in  shopa  sua,  ibidem  de  tempore  in 

V  /  tempus,  and  that  he  took  the  goods  of  the  plaintiff  named  in  the 

^  I  declaration,  and  carried  them  away,  and  pra3^ed  the  advice  of  the 

^  f  court,  if  the  defendant  were  culpable  or  not;  and  upon  the  postea 

^  returned,  Shuttleworth  prayed  judgment  for  the  plaintiff.    And  the 

doubt  was  because  the  declaration  was  quare  vi  et  armis,  because  it 
appeared  that  the  defendant  had  custody  of  the  goods;  but  Shuttle' 
'  worth  doubted  whether  he  had  custody,  and  cited  the  case  of  Little*' 

ton,  namely,  If  I  give  my  sheep  to  pasture,  etc.,  and  he  kills  them,  an 
action  of  trespass  lies;  and  the  justices  held  that  in  this  case  the 
action  did  well  lie;  and  Periam  said  that  the  defendant  had  only 
an  authority,  and  not  custody  or  possession*  and  judgment  was 
given  for  the  plaintiff.  3  H.  7,  12;  21  H.  7,  14.  And  Windham  said, 
that  if  he  had  embezzled  his  master's  goods,  without  question  it  was 
felony.  Quod  fuit  concessum  (Anderson  absent),  and  the  law  will 
not  presume  that  the  goods  were  out  of  the  possession  of  the  plain- 
tiff; and  the  next  day  came  the  Lord  Anderson  and  rehearsed  the 
case,  and  said,  that  the  defendant  had  neither  general  nor  special 
property  in  the  goods,  for  it  is  plain  he  could  have  no  general  prop- 
erty, and  special  he  had  not,  for  he  could  not  have  an  action  of 
trespass  if  they  were  taken  away;  then  if  he  had  no  property,  a  tres- 
pass lies  against  him,  if  he  take  them;  so  if  a  shepherd  steal  sheep, 
it  is  felony,  for  he  hath  no  property  in  them, 


SECT.  IV.]  FITZGERALD  V.    ELLIOTT.  67 

FITZGERALD  v.   ELLIOTT. 

162  Pa.  118.     1894. 

Opinion  by  Mr.  Justice  McCollum,  May  31,  1894: 

This  is  an  appeal  from  the  refusal  of  the  court  below  to  take  off 
a  compulsory  nonsuit  in  an  action  against  a  sheriff  for  levjnng  upon 
and  selling  a  quantity  of  logs  on  an  execution  against  A.  Max^vell, 
who  was  the  owner  of  a  sawmill,  and  engaged  in  the  business  of  manu- 
facturing lumber.  It  appears  from  the  evidence  in  the  case  that  ]\Iax- 
well  owned  the  timber  which  had  been  cut  and  peeled  on  the  Dixon 
tract ;  that  he  employed  the  plaintiff  to  cut  the  timber  into  logs  and 
put  them  in  the  mill  pond,  and  that  the  logs  levied  on  and  sold  by  the 
sheriff  were  cut  and  skidded  by  the  plaintiff  on  said  tract  where  they 
were  at  the  time  of  the  sale.  The  logs  were  the  propertj^  of  Maxwell, 
but  the  plaintiff  claimed  a  lien  upon  them  for  his  labor.  It  also  ap- 
pears from  the  evidence  that  the  sheriff  did  not  at  anj'  time  remove 
the  logs,  that  the  only  possession  he  had  of  them  was  such  as  was  im- 
putable to  the  levy,  and  that  the  purchaser  at  the  sale  removed  them 
subsequently  thereto.  It  should  be  stated  in  this  connection  that  it 
appears  by  the  sheriff's  return  that  from  the  time  of  the  levy  to  the 
time  of  the  sale  he  left  the  property  levied  upon  in  charge  of  A.  W. 
Foster.  The  learned  trial  judge  thought  that  upon  these  uncontro- 
verted  facts  the  sheriff  was  not  liable  to  the  plaintiff  in  an  action  of 
trespass. 

It  seems  to  us  that  the  first  question  presented  for  our  considera- 
tion is  whether  the  plaintiff  had  a  common-law  lien  upon  the  logs. 
If  we  concede  that  he  had  such  a  lien,  we  are  then  to  inquire  whether 
there  wassuch  interference  with  or  disturbance  of  the  property  bound 
by  it  as  rendered  the  sheriff  a  trespasser  in  making  the  levy  and  sale. 

It  is  indispensable  to  the  existence  of  a  common-law  lien  that  the 
party  who  claims  it  should  have  an  independent  and  exclusive  pos- 
session of  the  property.  Had  the  plaintiff  such  possession  of  the 
logs?  They  were  not  on  his  land.  They  were  on  the  Dixon  tract, 
but  whether  Maxwell  purchased  it  with,  the  timber,  the  evidence 
does  not  inform  us,  nor  is  it  material.  The  possession  of  the  timber 
was  in  the  owner  of  it,  and  that  possession  was  not  changed  or 
affected  by  the  arrangement  under  which  the  logs  were  cut  and 
skidded  by  the  plaintiff.  The  latter  was  not  a  bailee  of  the  timber 
or  of  the  logs  cut  therefrom.  He  was  employed  to  cut  the  timber 
into  logs  and  put  them  in  his  employer's  mill  pond.  There  was  noth- 
ing in  the  nature  of  his  employment  which  gave  him  an  independent 
and  exclusive  possession  of  the  timber  or  the  logs  at  any  time,  but 
on  the  contrary  the  agreement  under  which  he  was  to  do  the  work 
was  inconsistent  with  his  claim  of  a  right  to  the  possession  of  them 
until  he  was  paid  for  his  labor.   He  cut  and  skidded  the  logs  where 


58  FITZGERALD    V.    ELLIOTT.  [CHAP.  I. 

his  employer  had  the  right  to  cut  and  skid  them  preparatory  to  their 
removal  to  his  mill.  If  the  plaintiif  had  a  common-law  lien  upon  the 
logs  for  his  work,  then  he  who  cuts  firewood  or  splits  rails  from  his 
employer's  timber  and  hauls  or  agrees  to  haul  the  firewood  to  his 
employer's  house,  or  the  rails  to  designated  points  on  his  farm  for  the 
purpose  of  fencing  it,  has  a  like  lien.  And  if  this  be  so,  then  the 
person  who  is  employed  to  dig  coal  in  his  employer's  mine  and  pile 
it  at  the  pit's  mouth  on  his  employer's  land  has  a  common-law 
lien  upon  the  coal  for  his  labor  in  digging  and  pihng  it.  But  in  Ritter 
V.  Gates,  decided  at  Pittsburg  in  1852,  it  w^as  held  by  this  court,  in 
an  opinion  by  Chief  Justice  Black,  that  a  laborer  employed  to  dig 
ore  has  no  lien  upon  it  for  his  wages:  1  Am.  Law  Register,  119. 

The  cases  cited  in  support  of  the  plaintiff's  claim  are  not  analo- 
gous to  the  case  at  bar.  They  were  cases  in  which  the  lienor  had  an 
independent  possession  of  the  property  as  a  bailee,  or  in  which  the 
lien  was  created  by  the  agreement  of  the  parties.  In  this  case  there 
was  no  bailment  or  stipulation  for  a  lien. 

The  fundamental  error  in  the  plaintiff's  contention  lies  in  his  as- 
sumption that  he  had  an  independent  possession  of  the  property, 
when  in  fact  such  possession  as  he  had  was  that  of  his  employer. 
Maxw^ell  was  in  possession  of  the  Dixon  tract  for  the  work  the  plain- 
tiff did  for  him  there,  whether  he  owned  it  or  not;  the  land  on  which 
the  timber  lay  and  the  logs  were  cut  and  skidded  was  in  his  posses- 
sion for  the  purpose  for  which  his  employer  used  it.  It  follows  that 
the  rights  of  the  plaintiff  in  respect  to  the  lien  and  possession  were 
the  same  as  if  his  employer  OMoied  the  land  on  which  the  work  was 
done.  In  cutting  and  skidding  the  logs  where  he  did  he  was  exercising 
his  emploj^er's  right  to  cut  and  skid  them  there. 

We  conclude  upon  a  careful  consideration  of  the  plaintiff's  testi- 
mony in  reference  to  the  agreement  under  which  he  did  the  work, 
that  he  was  not  entitled  to  a  common-law  lien  upon  the  logs,  and 
that  if  he  had  a  statutory  lien  or  preference  for  all  or  part  of  his 
claim,  it  did  not  make  the  sheriff  a  trespasser  in  levying  upon  and 
selling  them.  If  he  had  a  statutory'  lien  or  preference  he  should  have 
looked  to  the  fund  realized  by  the  sale,  and  proceeded  for  the  en- 
forcement of  it  in  accordance  with  the  provisions  of  the  statute 
which  conferred  it.  It  follows  from  these  views  that  the  learned  court 
did  not  err  in  denying  the  motion  to  take  off  the  nonsuit. 

The  specifications  of  error  are  overruled. 

Judgment  affirmed. 


SECT.  IV.]  STATE    V.    SCHINGEN.  59 

STATE  V.  SCHINGEN. 

20  Wis.  74.     1865. 

On  exceptions  from  the  Circuit  Court  for  Winnebago  County. 

The  defendant  was  indicted  for  larceny  of  two  horses  and  a  set 
of  harness,  the  property  of  one  Buhler;  and  the  jury  having  found 
him  guilty,  a  new  trial  was  refused.  The  principal  questions  pre- 
sented by  the  defendant's  exceptions  arose  upon  instructions  asked 
for  by  him  and  refused,  the  character  of  which  will  sufficiently 
appear  from  the  opinion,  infra. 

Cole,  J.  The  first  instruction  asked  for  on  the  trial  by  the  de- 
fendant, however  true  as  an  abstract  proposition  of  law,  yet,  with- 
out some  explanation,  was  calculated  to  mislead  the  jury.  The  evi- 
dence shows  most  clearly  that  the  defendant  was  in  the  employ 
of  Buhler,  and  had  been  sent  from  Berlin  with  the  team  to  take  some 
beer  to  Omro  and  Waukau,  with  instructions  to  bring  back  the  kegs, 
and  money,  returning  by  the  way  of  Eureka  the  same  day.  It  ap- 
pears that,  after  disposing  of  most  of  the  beer  at  Omro,  the  defend- 
ant threw  the  empty  kegs  and  two  full  ones  remaining  unsold  over 
the  fence  into  a  field  at  that  place,  and  instead  of  returning  to  Ber- 
lin, drove  off  with  the  wagon  and  horses  to  Oshkosh,  where  he  offered 
the  horses  for  sale,  and  did  actually  sell  the  harness.  By  the  instruc- 
tion above  referred  to,  the  court  was  asked  to  charge  the  jury  that 
without  the  commission  of  a  trespass  there  could  be  no  larceny, 
and  that  there  could  be  no  trespass  unless  the  goods  were  taken  by 
the  accused  while  in  the  possession  of  the  owner.  The  court  gave 
this  instruction  ^vith  the  additional  remark,  that  if  the  accused  was 
at  work  for  the  owner  of  the  property,  and  the  property  was  put  into 
the  prisoner's  hands  to  go  to  Omro  and  other  places,  it  remained  in 
the  owner's  possession;  and  if  the  prisoner  took  it  beyond  the  places 
he  was  to  go  to,  for  the  purpose  of  converting  it  to  his  own  use,  this 
was  a  trespass.  Now  we  think  the  explanatory  remarks  were  very 
proper,  in  view  of  the  facts  of  the  case.  For  the  evidence  was  most 
distinct  and  positive  upon  the  point,  that  the  defendant  was  in  the 
employ  of  Buhler,  and  had  been  sent  away  by  him  with  the  wagon, 
horses,  harness,  beer,  etc.,  for  the  purpose  just  stated.  He  was  there- 
fore the  servant  of  Buhler,  having  only  a  bare  charge  or  custody 
of  the  property,  while  the  legal  possession  was  in  the  o^vner.  The  re- 
lation of  master  and  servant  thus  existing  between  the  parties  when 
the  property  was  entrusted  to  the  care  of  the  defendant  for  a  special 
purpose,  in  contemplation  of  law  the  possession  was  in  the  master, 
and  the  defendant  might  be  guilty  of  a  trespass  and  larceny  in  frau- 
dulently converting  it  to  his  own  use.  This  principle  is  fully  estab- 
lished by  the  authorities  to  which  the  attorney  general  referred  on  the 
argument.  Hence  it  was  very  proper  for  the  court  to  accompany  the 


60  COMMONWEALTH   V.   RYAN.  [CHAP.  I. 

instruction  with  the  remarks  he  made  upon  it,  and  tell  the  jury 
that  if  the  defendant  was  at  work  for  the  owner  of  the  property,  and 
the  property  was  put  under  his  custody  to  go  to  Omro  and  other 
places,  his  possession  was  for  the  time  being  the  possession  of  the 
master;  and  if  the  defendant  took  it  beyond  the  places  he  was  to  go 
to,  with  the  intent  to  convert  it  to  his  own  use,  he  was  guiltj^  of 
trespass.  Otherwise  the  jury  might  have  possibly  supposed,  because 
the  defendant  had  the  property  mider  his  care  and  custody,  he  must 
likewise,  necessarily  have  the  possession,  and  could  not  therefore  be 
said  to  take  it  from  the  possession  of  the  owner. 

The  court  was  further  asked  to  charge  the  jury,  that  if  they  should 
find  from  the  evidence  that  the  defendant  had  the  property  for  the 
purpose  of  going  to  Omro  and  other  places  to  carry  the  beer,  and  that 
at  the  time  he  took  the  property  from  the  owner  he  really  intended 
to  use  it  for  that  purpose,  and  had  no  intention,  at  the  time  he  took 
possession  of  it,  to  steal,  but,  finding  himself  in  the  possession,  he 
afterwards  formed  the  intention  of  converting  it  to  his  own  use  in- 
stead of  using  it  for  the  purpose  originally  designed,  then  the  taking 
would  not  amount  to  a  felony,  nor  would  it  constitute  larceny.  This 
instruction  is  obviously  incorrect,  since  it  assumes  that  to  consti- 
tute larceny  the  felonious  intent  must  have  existed  when  the  defend- 
ant was  first  intrusted  with  the  custody  of  the  property.  It  was  not 
necessary  that  the  jury  should  find  that  the  ajiimus  furandi  existed 
at  the  time  the  defendant  left  Berlin  for  Omro.  It  was  enough  that 
the  intention  existed  while  he  had  charge  of  the  property  as  servant 
to  the  owner,  and  that  it  was  carried  into  effect  by  converting  the 
property  to  his  o^vn  use.  The  People  v.  Call,  1  Denio,  120;  2  Russell 
on  Crimes,  157-8. 

By  the  Court.  —  The  exceptions  in  this  case  are  overruled,  and^j 
the  judgment  of  the  circuit  court  affirmed. 

Note.  —  There  are  early  authorities  to  the  efi"ect  that  the  master 
is  conceived  to  be  in  possession  of  goods  entrusted  to  the  serv^ant 
only  so  long  as  the  servant  is  in  the  master's  house,  or  with  th' 
master.    See  Y.  B.  21  Hen.  7,  14. 


COMMONWEALTH  v.  RYAN. 

155  Mass.  523.     1892.  Vpjo---- 

HoLMES,  J.  This  is  a  complaint  for  embezzlement  of  money. 
The  case  for  the  government  is  as  follows.  The  defendant  was  em- 
ployed by  one  Sullivan  to  sell  liquor  for  him  in  his  store.  SuUivan 
sent  two  detectives  to  the  store,  with  marked  money  of  Sullivan's, 


^i^^-^' 


SECT.  Iv^]  COMMONWEALTH    V.    RYAN.  61 

to  make  a  feigned  purchase  from  the  defendant.  One  detective  did 
so.  The  defendant  dropped  the  money  into  the  money  drawer  of 
a  cash  register,  which  happened  to  be  open  in  connection  with  an- 
other sale  made  and  registered  by  the  defendant,  but  he  did  not 
register  this  sale,  as  was  customary,  and  afterward  —  it  would  seem 
within  a  minute  or  two  —  he  took  the  money  from  the  drawer.  The 
question  presented  is  whether  it  appears,  as  matter  of  law,  that  the 
defendant  was  not  guilty  of  embezzlement,  but  was  guilty  of  lar- 
ceny, if  of  anything.  The  defendant  asked  rulings  to  that  effect  on 
two  grounds :  first,  that  after  the  money  was  put  into  the  drawer  it 
was  in  Sullivan's  possession,  and  therefore  the  removal  of  it  was  a 
trespass  and  larceny;  and  secondly,  that  Sullivan's  ownership  of  the 
money,  in  some  way  not  fully  explained,  prevented  the  offence  from 
being  embezzlement.   We  will  consider  these  positions  successively. 

"^emust  take  it  as  settled  that  it  isjiot  larceny  for  a  sejrvantto^, 
I  conv^H'propeftyTtettvere'd'to'Eim  by  a  third  personforKis  master, 
proyidp<i7i*^^f"^^n iitrfcrrr  th r  goods  have  n-aclied  their  destination, 
I  or  something  more  has  happened  to  reduce  him  to  a  mere  custodian 
■JUdmmonwealth  v.  King,  9  Cush.  284);  while,  on  the  other  hand,  if 
the  property  is  delivered  to  the  servant  by  his  master,  the  conver- 
sion is  larceny.    Commonwealth  v.  Berry,  99  Mass.  428;  Common- 
wealth V.  Davis,  104  Mass.  548. 

This  distinction  is  not  very  satisfactory,  but  it  is  due  to  historical 
accidents  in  the  development  of  the  criminal  law,  coupled,  per- 
haps, with  an  unwillingness  on  the  part  of  the  judges  to  enlarge  the 
limits  of  a  capital  offence.  2  Leach  (4th  ed.),  843,  848,  note;  1  Leach 
(4th  ed.),  35,  note;  2  East,  P.  C.  568,  571. 

The  history  of  it  is  this.  There  was  no  felony  when  a  man  received 
possession  of  goods  from  the  owner  without  violence.  Glanv.,  bk. 
10,  c.  13.  Y.  B.  13  Edw.  IV.  9,  pi.  5.  3  Co.  Inst.  107.  The  early 
judges  did  not  always  distinguish  clearly  in  their  language  between 
the  delivery  of  possession  to  a  bailee  and  the  giving  of  custody  to  a 
servant,  which  indeed  later  judges  sometimes  have  failed  to  do.  E.g. 
Littleton  in  Y.  B.  2  Edw.  IV.  15,  pi.  7.  Hen.  VII.  12,  pi.  9.  Ward  v. 
Macauley,  4  T.  R.  489,  490.  When  the  peculiar  law  of  master  and 
servant  was  applied  either  to  the  master's  responsibility  or  to  his 
possession,  the  test  seems  to  have  been  whether  or  not  the  servant 
was  under  the  master's  eye,  rather  than  based  on  the  notion  of  statiis 
and  identity  of  person,  as  it  was  at  a  later  day.  See  Byington  v.  Simp- 
son, 134  Mass.  169,  170.  Within  his  house  a  master  might  be  an- 
swerable for  the  torts  of  his  servant,  and  might  have  possession  of 
goods  in  his  servant's  custody,  altliough  he  himself  had  put  the 
goods  into  the  servant's  hands;  outside  the  house  there  was  more 
doubt;  as  when  a  master  intrusted  his  horse  to  his  servant  to  go  to 
market.  Y.  B.  21  Hen.  VII.  14,  pi.  21.  T.  24  Edw.  III.  Bristol,  in 
Molloy,  De  Jure  Maritimo,  bk.  2,  c.  3,  §  16.   Y.  B.  2  Hen.  IV.  18, 


62  COMMONWEALTH    V.    RYAN.  [CHAP.  I. 

pi.  6.  13  Edw.  IV.  10,  pi.  5;S.C.  Bro.  Abr.  Corone,  pi.  160.  Staund- 
forde,  I.,  c.  15,  fol.  2p;  c.  18,  fol.  26.  1  Hale,  P.  C.  505,  note.  See 
Heijdon  &  Smith's  case,  13  Co.  Rep.  67,  69;  Drope  v.  Theyar,  Pop- 
ham,  178,  179;  Combs  v.  Bradley,  2  Salk.  613;  and,  further,  42  Ass. 
pi.  17,  fol.  260;  42  Edw.  III.  11,  pi.  13;  Ass.  Jerus.  (ed.  1690),  cc. 
205,  217.  It  was  settled  by  St.  21  Hen.  VIII.  c.  7,  that  the  conver- 
sion of  goods  delivered  to  a  servant  by  his  master  was  felony,  and 
this  statute  has  been  thought  to  be  only  declaratory  of  the  common 
law  in  later  times,  since  the  distinction  between  the  possession  of  a 
bailee  and  the  custody  of  a  servant  has  been  developed  more  fully, 
on  the  ground  that  the  custody  of  the  servant  is  the  possession  of  the 
master.  2  East,  P.  C.  564,  565.  The  King  v.  Wilkins,  1  Leach  (4th 
ed.),  520,  523  See  Kelyng,  35;  Fitzh.  Nat.  Brev.  91  E;  Blosse's 
case,  Moore,  248;  8.  C.  Owen,  52,  and  Gouldsb.  72.  But  probably 
when  the  act  was  passed  it  confirmed  the  above-mentioned  doubt  as 
to  the  master's  possession  where  the  servant  was  intrusted  with  prop- 
erty at  a  distance  from  his  master's  house  in  cases  outside  the  statute, 
that  is,  when  the  chattels  were  delivered  by  a  third  person.  In  Dyer, 
5a,  56,  it  was  said  that  it  was  not  within  the  statute  if  an  apprentice 
ran  off  with  the  money  received  from  a  third  person  for  his  master's 
goods  at  a  fair,  because  he  had  it  not  by  the  delivery  of  his  master. 
This,  very  likely,  was  correct,  because  the  statute  only  dealt  with 
delivery  by  the  master;  but  the  case  was  taken  before  long  as  au- 
thority for  the  broader  proposition  that  the  act  is  not  a  felony,  and 
the  reason  was  invented  to  account  for  it  that  the  servant  has  pos- 
session, because  the  money  is  delivered  to  him.  1  Hale,  P.  C.  667,  668. 
This  phrase  about  delivery  seems  to  have  been  used  first  in  an  at- 
tempt to  distinguish  between  servants  and  bailees;  Y.  B.  13  Edw. 
IV.  10,  pi.  5;  Moore,  248;  but  as  used  here  it  is  a  perverted  remnant 
of  the  old  and  now  exploded  notion  that  a  servant  away  from  his 
master's  house  always  has  possession.  The  old  case  of  the  servant 
converting  a  horse  with  which  his  master  had  intrusted  him  to  go 
to  market  was  stated  and  explained  in  the  same  way,  on  the  ground 
that  the  horse  was  delivered  to  the  servant.  Crompton,  Just.  356, 
pi.  7.  See  The  King  v.  Bass,  1  Leach  (4th  ed.),  251.  Yet  the  empti- 
ness of  the  explanation  was  shown  by  the  fact  that  it  still  was  held 
felony  when  the  master  delivered  property  for  service  in  his  own 
house.  Kelyng,  35.  The  last  step  was  for  the  principle  thus  qualified 
and  explained  to  be  applied  to  a  delivery  by  a  third  person  to  a  serv- 
ant in  his  master's  shop,  although  it  is  possible  at  least  that  the  case 
would  have  been  decided  differently  in  the  time  of  the  Year  Books; 
Y.  B.  2  Edw.  IV.  15,  pi.  7;  Fitzh.  Nat.  Brev.  91  E,  and  although 
it  is  questionable  whether  on  sound  theory  the  possession  is  not  as 
much  in  the  master  as  if  he  had  delivered  the  property  himself.  Rex 
v.  Dingley  (1687),  stated  in  The  King  v.  Bazeley,  2  Leach  (4th  ed.), 
835,  841,  and  in  The  King  v.  Meeres,  1  Show.  50,  53.    Waite's  case 


SECT.  IV.]  COMMOmV'EALTH    V.    RYAN.  63 

(1743),  2  East,  P.  C.  570;  S.  C.  1  Leach  (4th  ed.),  28,  35,  note.  Bull's 
case,  stated  in  The  King  v.  Bazeley,  2  Leach  (4th  ed.),  835,  841 ;  ,S.  C. 
2  East,  P.  C.  571,  572.  The  King  v.  Bazeley,  ubi  supra;  Regina  v. 
Masters,  1  Den.  C.  C.  332."  Regina  v.  Reed,  Dears.  C.  C.  257,  261, 
262. 

The  last-mentioned  decisions  made  it  necessary'-  to  consider  with 
care  what  more  was  necessary,  and  what  was  sufficient,  to  reduce  the 
servant  to  the  position  of  a  mere  custodian.  An  obvious  case  was 
when  the  property  was  finally  deposited  in  the  place  of  deposit 
provided  by  the  master,  and  subject  to  his  control,  although  there 
was  some  nice  discussion  as  to  what  constituted  such  a  place.  Regina 
V.  Reed,  Dears.  C.  C.  257.  No  doubt  a  final  deposit  of  money  in  the 
till  of  a  shop  would  have  the  effect.  Waite's  case,  2  East,  P.  C.  570, 
571;  »S.  C.  1  Leach  (4th  ed.),  28,  35,  note.  Bull's  case,  2  East,  P.  C. 
572;  S.  C.  2  Leach  (4th  ed.),  841,  842.  The  King  v.  Bazeley,  2  East, 
P.  C.  571,  574;  S.  C.  2  Leach  (4th  ed.),  835,  843,  note.  Regina  v. 
Wright,  Dears.  &  Bell,  431,  441.  But  it  is  plain  that  the  mere  physical 
presence  of  the  money  there  for  a  moment  is  not  conclusive  while 
the  servant  is  on  the  spot  and  has  not  lost  his  power  over  it;  as,  for 
instance,  if  the  servant  drops  it,  and  instantly  picks  it  up  again. 
Such  cases  are  among  the  few  in  which  the  actual  intent  of  the  party 
is  legally  important;  for,  apart  from  other  considerations,  the  char- 
acter in  which  he  exercises  his  control  depends  entirely  upon  himself. 
Sloan  V.  Merrill,  135  Mass.  17,  19.  Jefferds  v,  Alvard,  151  Mass.  94, 
95.  Commonwealth  v.  Drew,  153  Mass.  588,  594. 

It  follows  from  what  we  have  said,  that  the  defendant's  first 
position  cannot  be  maintained,  and  that  the  judge  was  right  in 
charging  the  jury  that,  if  the  defendant  before  he  placed  the  money 
in  the  drawer  intended  to  appropriate  it,  and  with  that  intent 
simply  put  it  in  the  drawer  for  his  own  convenience  in  keeping  it 
for  himself,  that  would  not  make  his  appropriation  of  it  just  after- 
wards larceny.  The  distinction  may  be  arbitrary,  but,  as  it  does  not 
affect  the  defendant  otherwise  than  by  giving  him  an  opportunity, 
whichever  offence  he  was  convicted  of,  to  contend  that  he  should 
have  been  convicted  of  the  other,  we  have  the  less  uneasiness  in 
applying  it. 

Exceptions  overruled. 

Note.  —  See  Rex  v.  Bazeley,  2  East,  P.  C.  571;  Commonwealth  v. 
King,  9  Cush.  (Mass.)  284.  Cf.  State  v.  Brin,  30  Minn.  522. 

As  to  the  acts  which  will  change  the  servant's  possession  of  goods, 
received  from  a  third  person  for  the  master,  into  custody,  see  Regina 
V.  Reed,  6  Cox,  C.  C.  284;  Regina  v.  Hayward,  1  C.  &  K.  518;  Wash- 
ington V.  State,  106  Ala.  58;  Warmoth  v.  Commonwealth,  81  Ky.  133. 


64  HILDEBRAXD    V.    PEOPLE.  [CHAP.  L 

ANONYMOUS. 

Liber  Assisariim,  137,  pi.  39.     1353. 

One  a.  was  arraigned  with  the  mainor,  sc.  a  coverlet  and  two 
sheets;  and  he  put  himself  on  his  clergy.  And  it  was  found  by  the 
inquest  that  he  was  a  guest  at  the  house  of  a  man  of  note,  and  was 
lodged  within  these  bedclothes;  and  it  was  found  that  he  got  up 
before  day,  and  took  these  bedclothes  out  of  the  chamber,  and  car- 
ried them  into  the  hall,  and  went  off  to  the  stable  to  find  his  horse ; 
and  his  host  summoned  his  household  against  him.  And  it  was 
asked  of  the  inquest  whether  he  carried  the  bedclothes  into  the  hall 
with  intent  to  have  stolen  them;  and  they  said  yes.  Wherefore  he 
was  adjudged  a  felon,  and  v/as  delivered  to  the  ordinary,  because  he 
was  a  clerk,  etc. 

Note.  —  See  also  Richards  v.  Commonwealth,  13  Gratt.  (Va.)  803. 


HILDEBRAND  v.  PEOPLE. 

56  X.Y.  394.     1874. 

Church,  Ch.  J.  The  prosecutor  handed  the  prisoner,  who  was  a 
bar-tender  in  a  saloon,  a  fifty  dollar  bill  (greenback)  to  take  ten  cents 
out  of  it  in  pajTuent  for  a  glass  of  soda.  The  prisoner  put  down  a 
few  coppers  upon  the  counter,  and  when  asked  for  the  change,  he 
took  the  prosecutor  by  the  neck  and  shoved  him  out  doors,  and  kept 
the  money. 

The  question  is  presented  on  behalf  of  the  prisoner  whether  lar- 
ceny can  be  predicated  upon  these  facts.  There  was  no  trick,  device 
or  fraud  in  inducing  the  prosecutor  to  deliver  the  bill;  but  we  must 
assume  that  the  jury  found,  and  the  evidence  was  sufficient  to  jus- 
tify it,  that  the  prisoner  intended,  at  the  time  he  took  the  bill, 
feloniously  to  convert  it  to  his  own  use. 

It  is  urged  that  this  is  not  sufficient  to  convict,  because  the  prose- 
cutor voluntarily  parted  with  the  possession  not  onlj^,  but  ■v\ith  the 
property,  and  did  not  expect  a  return  of  the  same  property.  This 
presents  the  point  of  the  case.  "UTien  the  possession  and  property 
are  delivered  voluntarily,  without  fraud  or  artifice  to  induce  it,  the 
animus  furandi  will  not  make  it  larceny,  because  in  such  a  case  there 
can  be  no  trespass,  and  there  can  be  no  larceny  \^^thout  trespass 
(43  N.Y.  61).  But  in  this  case  I  do  not  think  the  prosecutor  should 
be  deemed  to  have  parted  either  with  the  possession  of,  or  property 
in,  the  bill.  It  was  an  incomplete  transaction,  to  be  consummated 
in  the  presence  and  under  the  personal  control  of  the  prosecutor. 


SECT.  IV.]  HILDEBRAND    V.    PEOPLE.  65 

There  was  no  trust  or  confidence  reposed  in  the  prisoner,  and  none 
.ntended  to  be.  The  delivery  of  the  bill  and  the  giving  change  were 
^0  be  simultaneous  acts,  and  until  the  latter  was  paid,  the  delivery 
vas  not  complete.  The  prosecutor  laid  his  bill  upon  the  counter,  and 
impliedly  told  the  prisoner  th,at  he  could  have  it  upon  delivering  to 
him  $19.90.  Until  this  was  done  neither  possession  nor  property 
passed;  and  in  the  mean  time  the  bill  remained  in  legal  contempla- 
tion under  the  control  and  in  the  possession  of  the  prosecutor.  This 
view  is  not  without  authority.  The  case  of  Reg.  v.  McKale,  11  Cox, 
C.  C.  32,  is  instructive.  The  prosecutrix  put  down  two  shillings  upon 
the  counter,  expecting  to  receive  small  change  for  it  from  the  pris- 
oner. There  being  several  pieces  on  the  counter,  the  prosecutrix  took 
up  a  shilling  of  the  prisoner's  money,  and  a  shilling  of  her  o^\-n, 
which  she  did  not  discover  until  she  was  putting  them  in  the  ch'awer. 
A  confederate  just  then  attracted  her  attention,  and  the  prisoner 
passed  out  with  the  two  shillings.  It  was  held  upon  full  consideration 
that  the  conviction  for  stealing  the  two  shillings  was  right.  Kelly, 
C.  B.,  said:  "The  question  is,  did  she  part  with  the  money  she 
placed  on  the  counter?  I  say,  certainly  not,  for  she  expected  to  re- 
ceive two  shillings  of  the  prisoner's  money  in  lieu  of  it.  .  .  .  Placing 
jhe  money  on  the  counter  was  only  one  step  in  the  trauvsaction.  The 
act  of  the  prisoner  in  taking  up  the  money  does  not  affect  the  question 
whether  the  prosecutrix  parted  with  the  property  in  it.  The  property 
is  not  parted  with  until  the  whole  transaction  is  complete,  and  the 
conditions  have  been  fulfilled  on  which  the  property  is  to  be  parted 
with.  ...  I  am  of  the  opinion  that  the  property  in  the  two  shilling 
piece  was  not  out  of  the  prosecutrix  for  a  moment." 

In  Reg.  v.  Slowly,  12  Cox,  C.  C.  269,  the  prosecutor  sold  onions 
to  the  prisoners  who  agreed  to  pay  ready  money  for  them.  The 
onions  were  unloaded  at  a  place  indicated  by  the  prisoners,  and  the 
prosecutor  signed  a  receipt  at  the  request  of  the  prisoners,  when  they 
refused  to  restore  the  onions  or  pay  the  price.  A  conviction  for  lar- 
ceny was  held  right;  the  jury  having  found  the  original  intention 
felonious.  This  was  upon  the  ground  that  the  delivery  and  pa;sTnent 
were  to  be  simultaneous  acts,  that  the  property  did  not  pass  until 
payment,  and  that  no  credit  or  trust  was  intended.  (See  also  id. 
257,  248;  2  Russ.  on  Cr.  22.) 

The  counsel  for  the  prisoner  relies  upon  the  case  of  Reg.  v.  Thomas, 
9  C.  &  P.  741.  There  the  prosecutor  permitted  the  prisoner  to  take 
a  sovereign  to  go  out  to  get  it  changed.  The  court  held  that  the 
prisoner  could  not  be  convicted  of  larceny,  because  he  had  divested 
himself  of  the  entire  possession  of  the  sovereign  and  never  expected 
to  have  it  back.  This  was  a  nisi  prius  decision,  and  is  not  as  authori- 
tative for  that  reason,  but  the  distinction  between  that  case  and 
this  is  the  one  first  suggested.  There  all  control,  power  and  posses- 
sion was  parted  with,  and  the  prisoner  was  intrusted  with  the  money, 


66  DEAN    V.    HOGG.  [CHAP.  I, 

and  was  not  expected  to  return  it.  Here,  as  we  have  seen,  the  prose- 
cutor retained  the  control  and  legally  the  possession  and  property. 
The  line  of  distinction  is  a  narrow  one,  but  it  is  substantial  and  suf- 
ficiently well  defined. 

The  judgment  must  be  afiirmed.  All  concur. 

Judgment  affirmed. 


DEAN  V.  HOGG. 

10  Bingham,  345.     1834. 

The  defendant  Lewis  hired  a  steamboat  for  a  party  of  pleasure 
to  Richmond,  upon  the  terms  disclosed  in  the  following  letter  from 
the  owner :  — 

"I  note  the  Adelaide  is  engaged  to  you  for  Richmond  or  Twicken- 
ham for  Tuesday  the  28th  of  May,  at  the  hire  for  the  day  of  51.  10s., 
your  party  not  exceeding  fifty  persons." 

The  vessel  was  navigated  by  a  captain  and  crew,  employed  and 
paid  by  the  owner. 

Just  as  she  was  about  to  start  from  a  quay  in  London,  the  plain- 
tiff, an  attorney,  a  stranger  to  the  defendant,  stepped  on  board, 
not  being  aware  that  the  vessel  had  been  hired  for  the  day  by  Lewis, 
and  his  embarkation  being  countenanced  by  the  captain. 

The  plaintiff  was  not  long  in  discovering  that  he  had  intruded 
into  a  private  party,  and  expressed  to  some  one  near  him  his  readi- 
ness to  quit  the  vessel  when  an  opportunity  should  present  itself; 
but  the  person  so  addressed  rather  counselled  him  to  stay.  How- 
ever, by  the  time  the  Adelaide  had  reached  Battersea,  it  was  gener- 
ally bruited  about  that  a  stranger  was  on  board.  The  ladies  be- 
came alarmed;  and  Hogg,  as  the  plaintiff  alleged,  in  an  imperious 
tone,  ordered  him  to  quit  the  vessel. 

The  plaintiff,  irritated  by  what  appeared  to  him  a  harsh  manner 
of  making  a  lawful  request,  refused  to  go;  whereupon  the  defendants, 
after  calling  on  the  captain  to  remove  the  plaintiff,  \\'ith  considerable 
violence  shoved  him  into  a  boat  alongside,  and,  in  so  doing,  tore 
off  the  skirts  of  his  coat. 

For  this  assault,  the  plaintiff  now  sued  them  in  trespass;  and  hav- 
ing obtained  a  verdict  for  lOZ.  damages,  the  question,  upon  a  motion 
to  set  aside  the  verdict  and  enter  a  nonsuit  instead,  was,  whether, 
under  the  above  contract  with  the  owner,  Lewis  had  such  possession 
of  the  steam  vessel  as  to  support  the  defendant's  second  plea,  which 
alleged  that  Lewis  was  lawfully  possessed  of  the  steam  vessel  men- 
tioned in  the  declaration;  that  the  plaintiff  was  unlawfully  in  the 
steam  vessel,  from  which  he  would  not  depart  when  requested;  and 
then  justified  the  committing  of  the  trespasses  by  the  defendants  in 


SECT.  IV.]  DEAN    V.    HOGG.  67 

defence  of  the  possession  of  Lewis,  and  in  order  to  remove  the  plain- 
tiff from  the  vessel. 

TiNDAL,  C.  J.  The  question  which  has  been  argued  before  us 
arises  upon  the  second  plea  of  the  defendants,  which  afleges  that 
Lewis,  one  of  the  defendants,  was  lawfully  possessed  of  the  steam 
vessel  mentioned  in  the  declaration ;  that  the  plaintiff  was  unlawfully 
in  the  steam  vessel,  from  which  he  would  not  depart  when  requested; 
and  then  justifies  the  committing  of  the  trespasses  by  the  defendants 
in  defence  of  the  possession  of  Lewis,  and  in  order  to  remove  the 
plaintiff  from  the  vessel. 

And  the  question  made  at  the  trial,  and  argued  before  us,  has 
been,  whether,  upon  the  facts  proved,  Lewis  had  such  possession  of 
the  steam  vessel  as  would  authorise  him  to  use  force  in  removing 
the  plaintiff  from  it. 

The  evidence,  so  far  as  it  related  to  the  possession  of  the  vessel, 
was  a  letter  from  the  owner  to  Lewis,  in  these  terms:  "I  note  the 
Adelaide  is  engaged  to  you  for  Richmond  or  Twickenham,  at  the  hire 
for  the  day  of  51.  10s.,  your  party  not  exceeding  fifty  persons."  The 
vessel  was  managed  by  the  captain  and.crew  belonging  to  the  same. 

There  can  be  no  doubt  that,  upon  such  a  contract,  although  there 
is  no  express  stipulation  to  that  effect,  the  defendant  Lewis  would 
be  entitled  to  the  full  enjoyment  of  the  vessel  for  himself  and  his  party 
free  from  the  intrusion  of  any  stranger.  The  circumstances  of  the 
case,  and  the  object  of  the  voyage  necessarily  imply  it;  so  that  if  the 
captain  afterwards  admitted  any  other  passengers  for  hire,  or  freight 
to  Richmond  (as  in  fact  he  did  admit  the  plaintiff),  such  admission 
would  amount  to  a  breach  of  contract  between  him  and  Lewis,  for 
which  the  latter  might  have  recovered  a  compensation  in  damages. 

There  can  also  be  no  doubt  but  that,  if  the  plaintiff  had  been  a 
stranger  intruding  himself  against  the  will  or  without  the  permission 
of  the  captain,  the  captain  himself,  or  the  passengers  in  his  aid,  and 
as  his  servants,  might  have  justified  turning  him  out.  And  this  seems 
to  have  been  the  opinion  of  the  defendants  themselves,  who  called 
upon  the  captain  to  remove  the  plaintiff. 

But  the  question  still  arises,  whether,  under  this  contract,  Lewis 
had  such  an  exclusive  possession  of  the  vessel,  as  would  justify  him 
in  forcibly  putting  the  plaintiff  out  of  the  vessel,  admitted  as  he 
had  been  by  the  captain,  in  defence  of  his  possession ;  and  we  think 
he  had  not.  It  must  be  admitted,  that,  in  the  case  of  Hutton  v.  Bragg, 
2  Marsh.  339,  cited  by  the  defendant's  counsel,  the  Court  of  Com- 
mon Pleas  held,  that,  by  the  charter  of  an  entire  ship,  the  possession 
was  parted  with  to  the  charterer,  so  that  the  o\vner  could  have  no 
lien  for  the  freight  upon  goods  put  on  board;  but  subsequent  cases 
have  narrowed  the  generality  of  this  doctrine,  and  have  decided, 
that  the  question,  whether  the  possession  of  the  ship  has  or  has  not 
been  given  up  to,  and  taken  by,  the  charterers,  must  depend  upon  the 


68  DEAN    V.    HOGG.  [CHAP.  I. 

terms  of  the  instrument  taken  altogether,  or  upon  the  purpose  and 
object  of  it.  (See  Trinity  House  v.  Clark,  4  M.  and  S.  288,  and  Yates 
and  Others  v.  Railston,  8  Taunt.  293.)  Here  there  was  no  express  con- 
tract for  the  exclusive  possession  of  the  vessel  by  Lewis.  And  there 
could  be  no  object  or  purpose  in  considering  the  vessel  as  taken  out 
of  the  possession  of  the  owTiers,  and  put  into  the  possession  of  Lewis. 
All  that  the  defendant  Lewis  bargained  for  was,  that  he  and  his  party 
should  be  carried  by  the  captain  and  the  crew  on  board  the  Adelaide 
to  Richmond,  without  the  addition  of  strangers;  and  such  a  contract 
might  be  well  carried  into  effect,  without  considering  the  possession 
changed  from  the  owTiers  to  Lewis.  The  captain  and  the  crew,  who 
continued  in  the  management  of  the  vessel,  were  the  servants  of 
the  owners,  not  of  Lewis.  If  any  injury  had  been  occasioned  by  the 
vessel,  the  owners,  not  Lewis,  would  have  been  answerable  for  the 
damages.  There  were  some  parts  of  the  vessel  manifestly  not  in  the 
possession  of  the  defendant  Lewis,  and  some  parts  to  which  he  had 
even  no  right  of  access  or  entry;  such  as  the  parts  occupied  by  the 
crew,  the  room  containing  the  machinery,  and  the  like.  If  the  cap- 
tain had  carried  goods  to  Richmond  for  other  persons,  to  any  extent 
short  of  incommoding  the  defendant  Lewis  and  his  friends,  the  de- 
fendant could  not  have  prevented  it,  either  by  removing  the  goods, 
or  by  action  against  the  o^\^lers:  —  all  which  considerations  tend  to 
shew  the  possession  was  never  given  up.  The  case  has  been  compared 
to  that  of  a  person  put  into  possession  of  a  room  at  an  inn  or  tavern, 
where  the  guest  (as  it  is  alleged)  might  turn  out  by  force  any  stranger 
who  intruded  himself,  whether  by  leave  of  the  innkeeper  or  without. 
Even  admitting  such  to  be  the  law,  the  cases  are  by  no  means  similar. 
The  sole  and  exclusive  possession  of  the  room  is  given  to  the  guest: 
there  is  nothing  more  to  be  done  by  the  landlord  than  to  leave  him 
in  possession.  It  is  the  intent  and  object  of  the  contract  between  the 
parties,  that  such  possession  should  be  exclusive  and  undisturbed. 
Even  the  innkeeper  has  parted  with  his  right  to  enter  for  the  time 
the  guest  is  in  possession,  except  for  purposes  manifestly  implied 
by  their  relative  situation,  or  for  purposes  allowed  by  law.  But,  in 
this  case,  the  merely  putting  Le"v\is  in  possession  of  the  vessel  would 
have  been  nothing;  the  main  part  of  the  contract  remained  to  be 
performed  by  the  captain  and  crew;  viz.,  the  carrying  them  to  Rich- 
mond and  back  again:  for  which  purpose  it  was  essential  they  should 
remain  on  board,  and  retain  the  management  and  conduct  of  the 
vessel.  Looking,  therefore,  at  the  object  and  intention  of  all  parties, 
we  think  the  exclusive  possession  of  the  vessel  did  not  pass  to  the 
party  hiring  the  vessel  for  the  limited  purpose  of  being  carried  to 
Richmond  and  back,  and,  consequently,  that  the  plea  is  not  estab- 
lished. And  we  feel  the  more  satisfied  in  not  being  obliged  to  disturb 
this  verdict,  because  we  think  it  meets  the  justice  of  the  case. 

Rule  discharged. 


SECT.  IV.]  SMITH    V.    ST.    MICHAEL,    CAMBRIDGE.  69 

SMITH  V.   ST.   MICHAEL,   CAMBRIDGE. 

3  E.  &  E.  383.     1860. 

Hill,  J.,  now  delivered  the  judgment  of  the  court.  In  this  case, 
which  was  argued  before  my  Brother  Blackburn  and  myself,  we 
took  time  to  consider  whether  the  appellant  was  to  be  considered 
occupier  of  the  whole  of  the  house  in  respect  of  which  he  was  rated, 
or  whether  five  rooms  and  a  closet  in  that  house  were  in  the  occupa- 
tion of  the  Commissioners  of  Inland  Revenue.  There  is  no  doubt  that 
exclusive  possession  of  a  part  only  of  a  house  may  be  given,  so  as  in 
effect  to  make  the  two  parts  of  the  house  separate  tenements:  the 
question  in  the  present  case  was,  whether  such  possession  had  been 
given;  and  we  are  of  opinion  that  it  had  not.  The  agreement  between 
the  appellant  and  the  representatives  of  the  Commissioners  of 
Inland  Revenue  is  set  forth  in  the  case.  By  it  the  appellant  con- 
tracted to  give  to  the  Inland  Revenue  the  exclusive  enjoyment 
of  five  rooms  and  a  closet  in  his  house;  and  in  the  agreement  it 
is  expressed  that  the  appellant  "agrees  to  let"  and  the  other 
party  takes  the  rooms,  and  it  is  stipulated  that  "possession"  shall 
be  given  and  rent  commence  at  a  particular  time,  all  of  which  are 
words  properly  applicable  to  a  demise  of  the  five  rooms.  But  at  the 
same  time  it  is  stipulated:  "For  the  annual  consideration  of  90/.; 
this  sura  to  include  all  expenses,  namely,  rent,  rates,  taxes,  gas,  wood, 
coals,  also  providing  a  trustworthy  person  to  reside  on  the  premises, 
to  keep  clean,  light  fires,  and  attend  to  the  same."  We  think  that 
we  must  look  not  so  much  at  the  words  as  the  substance  of  the  agree- 
ment; and,  taking  the  whole  together,  we  thinlc  it  must  be  construed, 
not  as  a  demise  of  the  five  rooms,  but  as  an  agreement  by  which  the 
appellant,  retaining  possession  of  those  rooms  and  keeping  his  serv- 
ant there,  bound  himself  to  supply  the  other  party  there  with  fire 
and  gas  and  attendance.  It  is  true  that  the  exclusive  enjoyment  of 
the  rooms  is  to  be  given ;  but  that  is  the  case  where  a  guest  in  an  inn 
or  a  lodger  in  a  house  has  a  separate  apartment,  or  where  a  passen- 
ger in  a  ship  has  a  separate  cabin;  in  which  case  it  is  clear  that  th  ) 
possession  remains  in  the  innkeeper,  lodging-house  keeper,  or  ship- 
owner. "We  think,  therefore,  that  the  appellant  was  occupier  of  the 
whole  of  the  rated  property. 

Note.  —  In  Allan  v.  Liverpool,  L.  R.  9  Q.  B.  180,  Blackburn,  J., 
said  (p.  191) :  "  This  case  involves  difficult  questions  of  fact,  but  if  we 
get  at  the  facts  I  do  not  think  there  is  any  difficulty  at  all  about  the 
law.  The  poor-rate  is  a  rate  imposed  by  the  statute  on  the  occupier, 
and  that  occupier  must  be  the  exclusive  occupier,  a  person  who,  if 
there  was  a  trespass  committed  on  the  premises,  would  be  the  per- 
son to  bring  an  action  of  trespass  for  it.  A  lodger  in  a  house,  although 


70  SMITH    V.    ST.    MICHAEL,    CAMBRIDGE.  •      [CHAP.  I. 

he  has  the  exclusive  use  of  rooms  in  the  house,  in  the  sense  that 
nobody  else  is  to  be  there,  and  though  his  goods  are  stored  there,  yet 
he  is  not  in  exclusive  occupation  in  that  sense,  because  the  landlord 
is  there  for  the  purpose  of  being  able,  as  landlords  commonly  do  in 
the  case  of  lodgings,  to  have  his  own  servants  to  look  after  the  house 
and  the  furniture,  and  has  retained  to  himself  the  occupation,  though 
he  has  agreed  to  give  the  exclusive  enjoyment  of  the  occupation  to 
the  lodger.  Such  a  lodger  could  not  bring  ejectment  or  trespass 
quare  clausum  fregit,  the  maintenance  of  the  action  depending  on 
the  possession."  And  see  Holmes  v.  Bagge,  1  E.  &  B.  782. 

In  Stocks  V.  Booth,  1  T.  R.  428,Buller,  J.,  said  (p.  430) :  "Trespass 
will  not  lie  for  entering  into  a  pew,  because  the  plaintiff  has  not 
the  exclusive  possession;  the  possession  of  the  church  being  in  the 
parson." 

In  Curtiss  v.  Hoyt,  19  Conn.  154,  the  court  said  (p.  167):  "The 
owner  of  a  building  can  hardly  be  said  to  be  out  of  possession,  be- 
cause he  has  leased  the  rooms,  as  such,  to  divers  individuals." 


SECT.  I.]  ZIMMEKMAN    V.    SHREEVE.  71 


CHAPTER  II. 
RIGHTS  BASED   UPON  POSSESSION. 


SECTION   1. 


RIGHTS  OF  A  PERSON  WHO  HAS  POSSESSION  BY  REASON 
OF  A  TENANCY,  BAILMENT,  OR  LAWFUL  SEIZURE. 


ZIMMERMAN  v.  SHREEVE. 

59  Md.  357.     1882. 

Alvey,  J.,  delivered  the  opinion  of  the  court. 

This  was  an  action  of  trespass  qumx  clausum  fregit  brought  by  the 
appellee,  the  plaintiff  below,  against  the  appellant.  The  plaintiff 
was  only  tenant  for  life  of  the  premises  upon  whith  the  alleged  tres- 
pass was  committed.  The  trespass  complained  of  was  the  breaking 
the  close,  and  the  cutting  down,  and  otherwise  destroying,  large 
quantities  of  growing  timber  thereon,  and  the  carrying  away  of 
quantities  of  rails,  posts,  logs,  tan  bark,  etc. 

In  the  course  of  the  trial  below  there  were  several  bills  of  excep- 
tion taken  by  the  defendant;  but  the  only  question  raised  in  this 
court,  as  we  gather  from  the  briefs  submitted,  is  one  with  respect 
to  the  measure  of  damages,  and  that  is  raised  upon  the  prayers 
which  were  granted  by  the  court,  at  the  instance  of  the  plaintiff. 

The  gist  of  the  action  of  trespass  quare  clausum  fregit  is  the  injury 
to  the  plaintiff's  possession,  and  therefore,  to  maintain  the  action, 
it  is  essential  that  he  be  either  in  the  actual  or  constructive  posses- 
sion of  the  locus  in  quo,  at  the  time  of  the  injury  done.  Gent  v.  Lynch, 
23  Md.  58.  The  damages  will  vary,  and  must  be  measured,  accord- 
ing to  the  interest  of  the  plaintiff  in  the  locus  in  quo.  This  rule  of 
damages  is  founded  upon  obvious  principles  of  justice,  as  otherwise 
the  plaintiff  might  get  extravagant  recompense  for  the  injury  to  the 
land,  when  his  interest  therein  was  limited,  or  upon  the  eve  of  ex- 
piring, and  the  defendant  might  be  made  liable  for  the  same  dam- 
ages to  different  persons.  It  is  well  settled  that  the  same  acts  of 
trespass  may  inflict  injuries  upon  different  rights,  for  which  the 
defendant  may  be  liable  in  several  actions,  to  different  persons, 
according  to  the  nature  and  extent  of  the  injury  inflicted.  In  the  case 
of  a  tenant,  whether  for  life  or  for  years,  he  may  sue  and  recover 


72  ZIMMERMAN    V.    SHREEVE.  [CHAP.  H. 

for  the  injury  to  his  possession  and  right  of  enjoyment,  and  the 
reversioner  or  remainder-man  may  sue  and  recover  for  any  injury 
sustained  to  the  estate  in  reversion  or  remainder.  And  where  there 
are  several  entitled  in  succession,  as  teiiants  for  life,  in  tail,  or  in 
fee,  they  can  recover  only  damages  commensurate  to  the  injury 
done  to  their  respective  estates.  Herlakenden's  Case,  4  Co.  63; 
Briddlesford  v.  Onslow,  3  Lev.  209;  Jefferson  v.  Jefferson,  Id.  130; 
Jesser  v.  Gifford,  4  Burr.  2141 ;  Evelyn  v.  Raddish,  Holt  N.  P.  543, 
note;  Twijnam  v.  Knowles,  13  C.  B.  222;  Lane  v.  Thompson,  43  N.H. 
320.  The  damages,  therefore,  must  be  assessed  with  reference  to 
the  extent  of  the  several  interests  affected. 

Note.  —  See,  accord,  George  v.  Fisk,  32  N.H.  32,  45;  and  Rock- 
wood  V.  Robinson,  159  Mass.  406  (in  the  latter  case  the  tenant  for  life 
was  allowed  to  recover  full  damages  only  because  she  had  a  power 
of  disposition  over  the  fee). 

In  Bedingfield  v.  Onslow,  3  Lev.  209,  the  defendant  had  done  an 
injury  to  land  which  w^as  mider  lease,  and  had  paid  the' lessee  a  sum 
of  money  ''which  he  accepted  in  satisfaction  of  the  said  trespass," 
The  lessor  sued,  and  the  com't  held  that  the  defendant's  paj-ment  to 
the  lessee  was  no  defence,  that  the  lessee  might  sue  in  respect  of  the 
prejudice  done  to  the  possession,  and  the  lessor  in  respect  of  the 
prejudice  done  to  the  reversion,  "and  the  satisfaction  given  to  one 
is  no  bar  to  the  other." 

In  Willeij  V.  Larawaij,  64  Vt.  559,  the  plaintiff,  holding  a  dower 
estate,  was  allowed  to  recover  for  an  injurj^  to  the  reversion,  on  the 
ground  that  she  was  liable  to  the  reversioner  for  injuries  done  by 
trespassers.  The  court  further  said  (p.  563) :  "There  is  a  privity  of 
estate  between  the  reversioner  and  the  tenant  in  dower  so  that  this 
judgment  would  be  a  bar  to  another  action."  And  see  Perry  v. 
Jefferies,  61  S.C.  292,  314. 


THE  WINKFIELD. 

[1902]     P.   42. 

Collins,  M.R.  This  is  an  appeal  from  the  order  of  Sir  Francis 
Jeune  dismissing  a  motion  made  on  behalf  of  the  Postmaster-General 
in  the  case  of  The  Winkfield. 

The  question  arises  out  of  a  collision  which  occurred  on  April  5, 
1900,  between  the  steamship  Mexican  and  the  steamship  Winkfield, 
and  which  resulted  in  the  loss  of  the  former  -with  a  portion  of  the 
mails  which  she  was  carrjdng  at  the  time. 

The  owners  of  the  Winkfield  under  a  decree  limiting  liability  to 
32,514L  17s.  10c?.  paid  that  amount  into  court,  and  the  claim  in 


SECT.  I.]  THE    WINKFIELD.  73 

question  was  one  by  the  Postmaster-General  on  behalf  of  himseli 
and  the  Postmasters-General  of  Cape  Colony  and  Natal  to  recover 
out  of  that  sum  the  value  of  letters,  parcels,  etc.,  in  his  custody  aa 
bailee  and  lost  on  board  the  Mexican. 

The  case  was  dealt  with  by  all  parties  in  the  court  below  as  a  claim 
by  a  bailee  who  Avas  under  no  liability  to  his  bailor  for  the  loss  in 
question,  as  to  which  it  was  admitted  that  the  authority  of  Claridge 
V.  South  Staffordshire  Tramway  Co.,  [1892]  1  Q.  B.  422,  was  conclu- 
sive, and  the  President  accordingly,  -svdthout  argument  and  in  defer- 
ence to  that  authority,  dismissed  the  claim.  The  Postmaster-General 
now  appeals. 

The  question  for  decision,  therefore,  is  whether  Claridge's  Case 
was  well  decided.  I  emphasize  this  because  it  disposes  of  a  point 
which  was  faintly  suggested  by  the  respondents,  and  which,  if  good, 
would  distinguish  Claridge's  Case,  namely,  that  the  applicant  was  not 
himself  in  actual  occupation  of  the  things  bailed  at  the  time  of  the 
loss.  This  point  was  not  taken  below,  and  having  regard  to  the  course 
followed  by  all  parties  on  the  hearing  of  the  motion,  I  think  it  is  not 
open  to  the  respondents  to  make  it  now,  and  I  therefore  deal  ^\-ith 
the  case  upon  the  footing  upon  which  it  was  dealt  with  on  the  mo- 
tion, namely,  that  it  is  covered  by  Claridge's  Case.  I  assume,  there- 
fore, that  the  subject-matter  of  the  bailment  was  in  the  custody  of 
the  Postmaster-General  as  bailee  at  the  time  of  the  accident.  For 
the  reasons  which  I  am  about  to  state  I  am  of  opinion  that  Claridge's 
Case  was  -wrongly  decided,  and  that  the  law  is  that  in  an  action  against 
a  stranger  for  loss  of  goods  caused  by  his  negligence,  the  bailee 
in  possession  can  recover  the  value  of  the  goods,  although  he  would 
have  had  a  good  answer  to  an  action  by  the  bailor  for  damages  for 
the  loss  of  the  thing  bailed. 

It  seems  to  me  that  the  position,  that  possession  is  good  against 
a  wrongdoer  and  that  the  latter  cannot  set  up  the  jus  tertii  unless  he 
claims  under  it,  is  well  established  in  our  law,  and  really  concludes 
this  case  agamst  the  respondents.  As  I  shall  shew  presently,  a  long 
series  of  authorities  establishes  this  in  actions  of  trover  and  trespass 
at  the  suit  of  a  possessor.  And  the  principle  being  the  same,  it  fol- 
lows that  he  can  equally  recover  the  whole  value  of  the  goods  in  an 
action  on  the  case  for  their  loss  through  the  tortious  conduct  of  the 
defendant.  I  think  it  involves  this  also,  that  the  wrongdoer  who  is 
not  defending  under  the  title  of  the  bailor  is  quite  unconcerned  with 
what  the  rights  are  between  the  bailor  and  bailee,  and  must  treat 
the  possessor  as  the  owner  of  the  goods  for  all  purposes  quite  irre- 
spective of  the  rights  and  obligations  as  between  him  and  the  bailor. 
"1  think  this  position  is  well  established  in  our  law,  though  it  may  be 
that  reasons  for  its  existence  have  been  given  in  some  of  the  cases, 
which  are  not  quite  satisfactory.  I  think  also  that  the  obligation  of 
the  bailee  to  the  bailor  to  account  for  what  he  has  received  in  respect 


74  THE    WINKFIELD.  [CHAP.  II. 

of  the  destruction  or  conversion  of  the  thing  bailed  has  been  admitted 
so  often  in  decided  cases  that  it  cannot  now  be  questioned;  and, 
further,  I  think  it  can  be  shewn  that  the  right  of  the  bailee  to  recover 
cannot  be  rested  on  the  ground  suggested  in  some  of  the  cases,  namely, 
that  he  was  liable  over  to  the  bailor  for  the  loss  of  the  goods  converted 
or  destroyed.  It  cannot  be  denied  that  since  the  case  of  Armory  v. 
Delamirie,  1  Stra.  504,  not  to  mention  earlier  cases  from  the  Year 
Books  onward,  a  mere  finder  may  recover  against  a  WTongdoer  the 
full  value  of  the  thing  converted.  That  decision  involves  the  prin- 
ciple that  as  between  possessor  and  wrongdoer  the  presumption  of 
law  IS,  in  the  words  of  Lord  Campbell  in  Jeffries  v.  Great  Western 
Ry.  Co.,  5  E.  &  B.  802,  at  p.  806,  "that  the  person  who  has  posses- 
sion has  the  property."  In  the  same  case  he  says  (at  p.  805) :  "  I  am 
of  opinion  that  the  law  is  that  a  person  possessed  of  goods  as  his 
property  has  a  good  title  as  against  every  stranger,  and  that  one  who 
takes  them  from  him,  having  no  title  in  himself,  is  a  wrongdoer,  and 
cannot  defend  himself  by  sheT\ing  that  there  was  title  in  some  third 
person,  for  against  a  wrongdoer  possession  is  title.  The  law  is  so 
stated  by  the  very  learned  annotator  in  his  note  to  Wilbraham  v. 
Snow,"  2  Wms.  Saund.  47  f.  Therefore  it  is  not  open  to  the  defend- 
ant, being  a  wTongdoer,  to  inquire  into  the  nature  or  limitation  of  the 
possessor's  right,  and  unless  it  is  competent  for  him  to  do  so  the  ques- 
tion of  his  relation  to,  or  liability  towards,  the  true  owTier  cannot  come 
into  the  discussion  at  all;  and,  therefore,  as  between  those  two  parties 
full  damages  have  to  be  paid  without  any  further  inquiry.  The  extent 
of  the  liability  of  the  finder  to  the  true  owner  not  being  relevant  to 
the  discussion  between  him  and  the  "v\Tongdoer,  the  facts  which 
would  ascertain  it  would  not  have  been  admissible  in  evidence,  and 
therefore  the  right  of  the  finder  to  recover  full  damages  cannot  be 
made  to  depend  upon  the  extent  of  his  liability  over  to  the  true  owner. 
To  hold  othenv'ise  would,  it  seems  to  me,  be  in  effect  to  permit  a 
wrongdoer  to  set  up  a  jus  tertii  under  which  he  cannot  claim.  But, 
if  this  be  the  fact  in  the  case  of  a  finder,  why  should  it  not  be  equally 
the  fact  in  the  case  of  a  bailee?  Why,  as  against  a  WTongdoer,  should 
the  nature  of  the  plaintiff's  interest  in  the  thing  converted  be  any 
more  relevant  to  the  inquiry,  and  therefore  admissible  in  evidence, 
than  in  the  case  of  a  finder?  It  seems  to  me  that  neither  in  one  case 
nor  the  other  ought  it  to  be  competent  for  the  defendant  to  go  into 
evidence  on  that  matter. 

I  think  this  view  is  borne  out  by  authority;  for  instance,  in  Bur- 
ion  y.  Hughes,  2  Bing.  173;  27  R.  R.  578,  the  plaintiff,  who  had  bor- 
rowed furniture,  and  was  therefore  bailee,  was  held  to  be  entitled  to 
sue  in  trover  wTongdoers  who  had  seized  it  without  giving  in  evi- 
dence the  WTitten  agreement  under  which  he  held  it.  The  point  made 
for  the  defendant  was  that  "the  qualified  interest  having  been  ob- 
tained under  a  written  agreement  could  not  be  proved  except  by  the 


SECT.  I.l  THE   WINKFIELD.  75 

production  of  that  agreement  duly  stamped."  The  argument  on 
the  other  side  was  "that  the  existence  of  some  kind  of  interest  hav- 
ing been  estabhshed  the  precise  nature  of  it  or  the  terms  upon  which 
it  was  acquired  were  immaterial  to  the  support  of  this  action." 
Best,  C.J.,  in  delivering  judgment  says:  "If  this  had  been  a  case 
between  Kitchen  and  the  plaintiff  the  agreement  ought  to  have  been 
produced,  because  that  alone  could  decide  the  respective  rights  of 
those  two  parties ;  but  it  appears  that  Kitchen  was  to  supply  the  plain- 
tiff with  furniture,  and  the  question  is  whether,  after  he  had  obtained 
it,  he  had  a  sufficient  interest  to  maintain  this  action.  The  case 
which  has  been  referred  to  —  Sutton  v.  Buck,  2  Taunt.  302;  11  R.  R. 
585  —  confirms  what  I  had  esteemed  to  be  the  law  upon  the  subject, 
namely,  that  a  simple  bailee  has  a  sufficient  interest  to  sue  in  trover," 
By  holding,  therefore,  that  the  agreement  defining  the  conditions  of 
the  plaintiffs'  interest  was  immaterial  the  court  in  effect  decided 
that  the  right  of  the  bailee,  in  possession,  to  sue  could  not  depend 
upon  the  fact  or  extent  of  his  liability  over  to  the  bailor,  since  the 
plaintiff  was  allowed  to  keep  his  verdict  in  trover,  the  agreement 
defining  his  interest  and  liability  being  excluded  from  the  discus- 
sion. In  Sutton  V.  Buck,  on  the  authority  of  which  this  case  was 
.decided,  it  was  held  that  possession  under  a  general  bailment  is  suf- 
ficient title  for  the  plaintiff  in  trover.  The  plaintiff  had  taken  pos- 
session of  a  stranded  ship  under  a  transfer  void  for  non-compli- 
ance with  the  Register  Acts,  and  he  sued  the  defendant  in  trover 
for  portions  of  the  timber,  wood,  and  materials  of  which  the  de- 
fendant had  wrongfully  taken  possession.  Sir  James  Mansfield, 
C.J.,  had  non-suited  the  plaintiff,  on  the  ground  that  the  transfer  was 
defective  without  registration.  On  motion  the  non-suit  was  set  aside. 
Sir  James  Mansfield  being  a  member  of  the  court,  and  a  new  trial 
ordered  on  the  ground  that  the  plaintiff  had  sufficient  possession  to 
maintain  the  action  against  the  wrongdoer.  It  is  true  that  Chambre, 
J.,  reserved  his  opinion  as  to  the  measure  of  damages,  but  on  the  new 
trial  the  plaintiff  recovered  a  verdict  apparently  for  the  full  value 
of  the  things  converted,  and  on  further  motion  for  a  new  trial  the 
only  point  argued  was  that  the  defendant  was  justified  as  lord  of  the 
manor  in  doing  what  he  did  —  a  contention  which  was  rejected  by 
the  court. 

In  Sioire  v.  Leach,  18  C.  B.  (N.S.)  479,  a  pawnbroker,  whose 
landlord  had  wrongfully  taken  in  distress  pledges  in  the  custody  of 
the  pawnbroker,  was  held  entitled  to  recover  in  an  action  against 
the  landlord  for  conversion  the  full  value  of  the  pledges.  This  case 
was  decided  by  a  strong  court,  consisting  of  Erle,  C.J.,  Williams 
and  Keating,  JJ.,  and  has  never,  so  far  as  I  know,  been  questioned 
since.  The  duty  of  the  bailee  to  account  to  the  bailor  was  recognised 
as  well  established.  See  also  Turner  v.  Hardcastle,  11  C.  B.  (N.S.) 
683,  a  considered  judgment  of  the  Court  of  Common  Pleas,  which 


76  THE    WINKFIELD.  [CHAP.  H. 

included  Willes,  J,,  who  had  not  been  a  party  to  Swire  v.  Leach, 
and  where  the  bailee's  right  to  recover  full  damages  and  his  obliga- 
tion to  account  to  the  bailor  is  again  affirmed. 

The  ground  of  the  decision  in  Claridge^s  Case  was  that  the  plain- 
tiff in  that  case,  being  under  no  hability  to  his  bailor,  could  re- 
cover no  damages,  and  though  for  the  reasons  I  have  alread}^  given 
I  think  this  position  is  untenable,  it  is  necessary  to  follow  it  out  a 
little  further.  There  is  no  doubt  that  the  reason  given  in  Heydon 
and  Smith's  Case,  13  Rep.  69  —  and  itself  drawn  from  the  Year 
Books  —  has  been  repeated  in  many  subsequent  cases.  The  words 
are  these:  "Clearly,  the  bailee,  or  he  who  hath  a  special  property, 
shall  have  a  general  action  of  trespass  against  a  stranger,  and  shall 
recover  all  in  damages  because  that  he  is  chargeable  over." 

It  is  now  well  established  that  the  bailee  is  accountable,  as  stated 
in  the  passage  cited  and  repeated  in  many  subsequent  cases.  But 
whether  the  obligation  to  account  was  a  condition  of  his  right  to  sue, 
or  only  an  incident  arising  upon  his  recovery  of  damages,  is  a  very 
different  question,  though  it  was  easy  to  confound  one  view  with 
the  other. 

Holmes  C.J.,  in  his  admirable  lectures  on  the  Common  Law, 
in  the  chapter  devoted  to  bailments,  traces  the  origin  of  the  bailee's 
right  to  sue  and  recover  the  whole  value  of  chattels  converted,  and 
arrives  at  the  clear  conclusion  that  the  bailee's  obligation  to  account 
arose  from  the  fact  that  he  was  originally  the  only  person  who  could 
sue,  though  afterwards  by  an  extension,  not  perhaps  quite  logical,  the 
right  to  sue  was  conceded  to  the  bailor  also.  He  says  at  p.  167:  "At 
first  the  bailee  was  answerable  to  the  owner  because  he  was  the  only 
person  who  could  sue;  now  it  was  said  he  could  sue  because  he  was 
answerable  to  the  o^Niier."  And  again  at  p.  170:  "The  inverted  ex- 
planation of  Beaumanoir  will  be  remembered,  that  the  bailee  could 
sue  because  he  was  answerable  over,  in  place  of  the  original  rule 
that  he  was  answerable  over  so  strictly  because  only  he  could  sue." 
This  inversion,  as  he  points  out,  is  traceable  through  the  Year 
Books,  and  has  survived  into  m.odem  times,  though,  as  he  shews,  it 
has  not  been  acted  upon.  Pollock  and  Maitland's  History  of  Eng- 
lish Law,  vol.  2,  p.  170,  puts  the  position  thus:  —  "Perhaps  we 
come  nearest  to  historical  truth  if  we  say  that  between  the  two  old 
rules  there  was  no  logical  priorit}'.  The  bailee  had  the  action  because 
he  was  liable,  and  was  liable  because  he  had  the  action."  It  may  be 
that  in  early  times  the  obligation  of  the  bailee  to  the  bailor  was  abso- 
lute, that  is  to  say,  he  was  an  insurer.  But  long  after  the  decision  of 
Coggs  V.  Bernard,  [1704]  2  Ld.  Rajin.  909,  which  classified  the  obli- 
gations of  bailees,  the  bailee  has,  nevertheless,  been  allowed  to  re- 
cover full  damages  against  a  ■wTongdoer,  where  the  facts  would  have 
afforded  a  complete  answer  for  him  against  his  bailor.  The  cases 
above  cited  are  instances  of  this.  In  each  of  them  the  bailee  would 


SECT.  I.]  THE    WINKFIELD.  7V 

have  had  a  good  answer  to  an  action  by  his  bailor;  for  in  none  of 
them  was  it  suggested  that  the  act  of  the  wrongdoer  was  traceable 
to  neghgence  on  the  part  of  the  bailee.    I  think,  therefore,  that  the 
statement  drawn,  as  I  have  said,  from  the  Year  Books  may  be  ex- 
plained, as  Holmes,  C.J.,  explains  it,  but  whether  that  be  the  true 
view  of  it  or  not,  it  is  clear  that  it  has  not  been  treated  as  law  in  our 
courts.   Upon  this,  before  the  decision  in  Claridge's  Case,  there  was 
a  strong  body  of  opinion  in  text-books,  English  and  American,  in 
favour  of  the  bailee's  unqualified  right  to  sue  the  wrongdoer:  see 
Mayne  on  Damages,  4th  ed.  p.  381,  and  cases  there  cited;  Sedg^vick 
on  Damages,  7th  ed.  vol.  1,  p.  61,  n.  (a) ;  Story  on  Bailments,  9th  ed. 
s.  352;  Kent's  Commentaries,  12th  ed.  vol.  2,  p.  568,  n.  (e);  Pollock 
on  Torts,  6th  ed.  pp.  354,  355;  Addison  on  Torts,  7th  ed.  p.  523; 
and  as  I  have  already  pointed  out,  Williams,  J.,  the  editor  of  Williams' 
Saunders,  was  a  party  to  the  decision  of  Swire  v.  Leach,  18  C.  B. 
(N.S.)  479.   [See  also  Mr.  Justice  Wright  in  Pollock  and  Wright  on 
Possession,  p.  166.]  The  bailee's  right  to  recover  has  been  affirmed 
in  several  American  cases  entirely  without  reference  to  the  extent 
of  the  bailee's  liability  to  the  bailor  for  the  tort,  though  his  obliga- 
tion to  account  is  admitted  —  see  them  referred  to  in  the  passages 
cited,  and  in  particular  see  Ulhnan  v.  Barnard,  [1856]  73  Mass.  Rep. 
554;  Parish  v.  Wheeler,  [1860]  22  New  York  Rep.  494;  White  v.  Webb, 
15  Conn.  Rep.  302.   The  case  of  Rooth  v.  Wilson,  1  B.  &  A.  59,  is  a 
clear  authority  that  the  right  of  the  bailee  in  possession  to  recover 
against  a  wrongdoer  is  the  same  in  an  action  on  the  case  as  in  an  ac- 
tion of  trover,  if  indeed  authority  were  required  for  what  seems  ob- 
vious in  point  of  principle.    There  the  gratuitous  bailee  of  a  horse 
was  held  entitled  to  recover  the  full  value  of  the  horse  in  an  action 
on  the  case  against  a  defendant  by  whose  negligence  the  horse  fell 
and  was  killed.    The  case  was  decided  by  Lord  Ellenborough, 
C.J.,  Bayley,  Abbott,  and  Holroyd,  JJ.    The  three  latter  seem  to 
me  to  put  it  wholly  on  the  ground  that  the  plaintiff  was  in  possession 
and  the  defendant  a  wrongdoer.  Abbott,  J.,  says  shortly:  "I  think 
that  the  same  possession  which  would  enable  the  plaintiff  to  main- 
tain trespass  would  enable  him  to  maintain  this  action  " ;  and  Bayley, 
J,,  points  out  that  case  is  a  possessory  action.    But  Lord  Ellen- 
borough  undoubtedly  rests  his  judgment  on  the  view  that  the  plain- 
tiff would  himself  have  been  responsible  in  damages  to  his  bailor 
to  a  commensurate  amount.  This,  no  doubt,  was  his  personal  view, 
but  it  was  not  the  decision  of  the  court,  and,  as  I  have  pointed  out, 
it  has  certainly  not  ))een  acted  upon  in  subsequent  cases.  Therefore, 
as  I  said  at  the  outset,  and  as  I  think  I  have  now  she^\^l  by  au- 
thority, the  root  principle  of  the  whole  discussion  is  that,  as  against 
a  wrongdoer,  possession  is  title.  The  chattel  that  has  been  converted 
or  damaged  is  deemed  to  be  the  chattel  of  the  possessor  and  of  no 
other,  and  therefore  its  loss  or  deterioration  is  his  loss,  and  to  him, 


78  THE    WINKFIELD.  [CHAP.  II. 

if  he  demands  it,  it  must  be  reeouped./His  obligation  to  account 
to  the  bailor  is  really  not  ad  rem  in  the  'discussion.  It  only  comes  in 
after  he  has  carried  his  legal  position  to  its  logical  consequence 
against  a  wrongdoer,  and  serves  to  soothe  a  mind  disconcerted  by 
the  notion  that  a  person  who  is  not  himself  the  complete  owTierj 
should  be  entitled  to  receive  back  the  full  value  of  the  chattel  con- 
verted or  destroyedJ'There  is  no  inconsistency  between  the  two 
positions;  the  one  is  the  complement  of  the  other.  'As  between  bailee 
and  stranger,  possession  gives  title  —  that  is,  not  a  limited  interest, 
but  absolute  and  complete  ownership,  and  he  is  entitled  to  receive 
back  a  complete  equivalent  for  the  whole  loss  or  deterioration  of  the 
thing  itself.  As  between  bailor  and  bailee  the  real  interests jof^each 
must  be  inquired  into,  and,  as  the  bailee  has  to  account  for  the  thing 
bailed,  so  he  must  account  for  that  which  has  become  its  equivalent 
and  now  represents  it.  What  he  has  received  above  his  own  interest 
/  he  has  received  to  the  use  of  his  bailor.  The  wrongdoer,  having  once 

I  paid  full  damages  to  the  bailee,  has  an  answer  to  any  action  by  the 

U         bailor.  See  Com.  Dig.  Trespass  B.  4,  citing  Roll.  551, 1.  31,  569, 1.  22, 

I  Story  on  Bailments,  9th  ed.  s.  352,  and  the  numerous  authorities 

there  cited. 
The  liability  by  the  bailee  to  account  is  also  well  established  —  see 
\  the  passage  from  Lord  Coke,  and  the  cases  cited  in  the  earlier  part 
of  this  judgment  —  and  therefore  it  seems  to  me  that  there  is  no  such 
preponderance  of  convenience  in  favour  of  limiting  the  right  of  the 
bailee  as  to  make  it  desirable,  much  less  obligatory,  upon  us  to  mod- 
ify the  law  as  it  rested  upon  the  authorities  antecedent  to  Claridge's 
Case.  I  am  aware  that  in  two  able  text-books,  Beven's  Negligence 
in  Law  and  Clerk  and  Lindsell  on  Torts,  the  decision  in  Claridge^s 
Case  is  approved,  though  it  is  there  pointed  out  that  the  authori- 
ties bearing  the  other  way  were  not  fully  considered.  The  reasons, 
however,  which  they  give  for  their  opinions  seem  to  be  largely  based 
upon  the  supposed  inconvenience  of  the  opposite  view;  nor  are  the 
arguments  by  which  they  distinguish  the  position  of  bailees  from  that 
of  other  possessors  to  my  mind  satisfactory.  Claridge's  Case  was 
treated  as  open  to  question  by  the  late  Master  of  the  Rolls  in  Meux 
V.  Great  Eastern  Ry.  Co.,  [1895]  2  Q.  B.  387,  and,  wdth  the  greatest 
deference  to  the  eminent  judges  who  decided  it,  it  seems  to  me  that 
it  cannot  be  supported.  It  seems  to  have  been  argued  before  them 
upon  very  scanty  materials.  Before  us  the  whole  subject  has  been 
elaborately  discussed,  and  all,  or  nearly  all,  the  authorities  brought 
before  us  in  historical  sequence. 

Appeal  allowed. 
Stirling  and  Mathew,  L.JJ.,  concurred. 


SECT.  I.j  CHAMBERLAIN    V.    WEST.  79 

CHAMBERLAIN  v.  WEST. 

37  Minn.  54.     1887. 

Mitchell,  J.  This  action  was  brought  to  recover  the  vakie  of  a 
diamond  scarf-pin,  alleged  to  have  been  stolen  from  plaintiff's  room 
while  a  guest  at  the  West  Hotel.  It  appeared  from  the  evidence  that 
the  plaintiff  was  not  the  general  OA\Tier  of  the  pin,  but  that  a  year  or 
two  previous  he  had  borrowed  it  from  a  friend,  who,  he  says,  "  loaned 
it  to  him  for  ten  years."  The  plaintiff  had  a  verdict  for  the  full  value 
of  the  property.  The  defendant's  contention  is  —  First,  that  plain- 
tiff, being  a  mere  gratuitous  bailee,  had  no  such  interest  in  the 
property  as  would  entitle  him  to  recover;  and,  second,  even  if  he 
could  maintain  an  action,  he  could  only  recover  the  value  of  his 
special  property  in  the  thing. 

Nothing  is  better  settled  than  that,  in  actions  for  torts  in  the  taking 
or  conversion  of  personal  property  against  a  stranger  to  the  title,  a 
bailee,  mortgagee,  or  other  special-property  man  is  entitled  to  recover 
full  value,  and  must  account  to  the  general  owTier  for  the  surplus 
recovered  beyond  the  value  of  his  own  interest;  but  as  against  the 
general  owner  or  one  in  privity  T\ith  him  he  can  only  recover  the 
value  of  his  special  property.  1  Sedg.  Dam.  note  a ;  1  Suth.  Dam. 
210;  Jellett  v.  St.  Paul,  M.  &  M.  Ry.  Co.,  30  Minn.  265  (15  N.  W. 
Rep.  237);  Russell  v.  Butter  field,  21  Wend.  300;  Mechanics',  etc., 
Bank  v.  National  Bank,  60  N.Y.  40;  Atkins  v.  Moore,  82  111.  240; 
Fallon  V.  Manning,  35  AIo.  271.  A  mere  depositary  or  gratuitous 
bailee  may  maintain  such  an  action.  The  bailee  may  maintain  it, 
although  not  responsible  to  the  general  owner  for  the  loss.  This  he 
may  do,  not  only  against  one  who  has  tortiously  converted  the  prop- 
erty, but  also  against  one  through  whose  negligence  or  failure  ol 
duty  it  has  been  lost;  as,  for  example,  a  common  carrier  or  innkeeper, 
Edw.  Bailm.  §  37;  Faulkner  v.  Brown,  13  Wend.  63;  Maran  v.  Port- 
land Steam  Packet  Co.,  35  ^le.  55;  Finn  v.  Western  R.  Co.,  112  Mass. 
524;  Kellogg  v.  Sweeney,  1  Lans.  397,  46  N.Y.  291. 

Note.  —  See  also  White  v.  Webb,  15  Conn.  302;  Benjamin  v. 
Stremple,  13  111.  466;  American  District  Telegraph  Co.  v.  Walker, 
72  Mel.  454, 463;  Johnson  v.  Holyoke,  105  Mass.  80;  Miznerw.  Frazier, 
40  Mich.  592;  Lyle  v.  Barker,  5  Binn.  (Pa.)  457. 

It  has  frequently  been  said  that  a  bailee  may  recover  the  entire 
damage  done  to  a  bailed  chattel,  and  that  such  recovery  bars  any 
suit  by  the  bailor.  Story,  Bailments,  §  94;  Nicollsw.  Bastard,  2 
Cromp.  M.  &  R.  659,  660;  Knight  v.  Davis  Carriage  Co.,  71  Fed. 
662,  668;  Harrington  v.  King,  121  Mass.  269;  Woodman  v.  Not- 
tingham, 49  N.H.  387. 

But  more  cautious  statements  have  been  made.  In  Gillette  v.  Good' 


80  WHITE    V.    ALLEN.  fCHAP.  U. 

speed,  69  Conn.  363,  the  court  said  (p.  370) :  "If  goods  in  the  hands 
of  a  bailee  are  lost  by  the  wrongful  act  of  the  third  party,  the  latter 
is  liable  to  him  for  their  full  value,  unless  the  owner  interposes  by 
a  suit  for  his  own  protection."  In  Johnson  v.  Holyoke,  105  Mass.  80, 
the  court  said:  "A  hirer  or  other  bailee  of  chattels  is  entitled,  by 
virtue  of  his  possession,  to  maintain  an  action  of  tort  for  any  injury 
to  them.  In  such  an  action,  brought  with  the  express  or  implied 
consent  of  thesenfiralowner,  full  damages  for  the  mjury  to  the 
property  may"Berecovered,  and  a  judgment  therein  may  be  pleadec 
in  bar  of  any  like  action,  afterguards  brought  either  by  the  bailor  or 
by  the  bailee."  In  Finn  v.  Western  Railroad  Corporation,  112  Mass. 
524,  the  court  said  (p.  534),  that  it  was  to  be  presumed  from  the  facts 
that  the  bailor  had  acquiesced  in  the  recovery  by  the  bailee,  and 
"if  there  were  any  doubt  upon  this  point,  we  might  order  a  new 
trial  upon  the  question  of  damages  only." 


WHITE  V.  ALLEN. 

133  Mass.  423.  1882. 

Tort  for  the  conversion  of  fifty  hides  of  leather,  with  a  count  in 
contract  for  monej^  had  and  received.  The  case  was  submitted  to 
the  Superior  Court  upon  agreed  facts,  in  substance  as  follows: 

Charles  Byrt  died  intestate  on  March  25,  1881,  and  the  plaintiff 
was  appointed  administrator  of  his  estate  on  October  4,  1881.  The 
defendant  is  the  surviving  partner  of  the  firm  of  T.  H.  Allen  & 
Brother. 

The  plaintiff's  intestate  was  a  tanner  and  currier,  and,  in  Feb- 
ruary 1881,  the  defendant's  firm  sent  to  him  fifty  hides  to  be  by  him 
tanned,  curried  and  sold,  and,  out  of  the  proceeds  derived  from  the 
sale  of  the  hides  he  was  to  pay  the  firm  the  sum  at  which  they  were 
charged  to  him,  namely,  SI  17.61,  and  to  retain  the  balance  of  the 
proceeds  of  such  sale  for  his  labor  and  for  selling  the  same.  It  was 
stipulated  that,  until  thus  tanned,  curried  and  paid  for,  the  title  to 
the  hides  should  remain  in  the  firm.  The  process  of  tanning  and 
currjdng  was  not  quite  completed  when  the  plaintiff's  intestate  died, 
and,  within  two  days  after  his  death,  the  defendant's  firm  took  posses- 
sion of  the  hides  and  finished  and  completed  this  process.  Five  days 
after  his  death  they  sold  the  hides  for  S132.81 ;  and  this  was  their 
value  when  the  firm  took  possession  of  and  sold  them.  In  order  to 
prevent  damage  to  the  hides,  it  was  necessary  to  complete  this  pro- 
cess of  tanning  and  currj^ing  without  delay.  The  authority  of  the 
plaintiff's  intestate  to  tan,  curry  and  sell  these  hides  was  never 
revoked  during  his  life  by  the  defendant's  firm,  and  he  was  never 
paid  for  perfonning  this  service. 

If,  upon  the  above  facts,  the  plaintiff  could  recover,  judgment  was 


SECT.  I.]  WILBRAHAM    V.    SNOW.  81 

to  be  entered  for  him  for  such  sum  as  he  was  entitled  to  recover; 
otherwise,  judgment  for  the  defendant. 

Bacon,  J.,  found  that  the  plaintiff  was  entitled  to  recover  $132.81, 
and  ordered  judgment  for  him  for  that  amount;  and  the  defendant 
appealed  to  this  court. 

Devens,  J.  The  contract  between  the  plaintiff's  intestate  and 
the  defendant's  firm  is  not  to  be  deemed  one  so  personal  in  its  char- 
acter that  it  was  determined  by  the  death  of  the  intestate.  It  could 
have  been  completed  by  the  administrator,  by  finishing  the  tanning 
and  currying  and  selling  the  skins,  belonging  to  the  firm,  upon  the 
terms  agreed.  The  work  having  been  in  fact  completed  by  the  firm 
and  the  skins  sold,  the  question  is  as  to  the  damages  that  the  plaintiff 
may  recover.  Where  one  has  a  special  property  in  a  chattel,  or  a 
lien  thereon,  he  may  in  some  instances  recover  its  full  value  against 
a  wrongdoer  who  appropriates  it ;  but  as  in  such  casa  he  recovers  all 
that  exceeds  his  o^m  special  property  or  interest  therein,  for  the 
benefit  of  the  general  owner,  when  the  wrongdoer  is  not  a  third  per- 
son, but  the  general  o^mer  himself,  his  rights  are  fully  maintained, 
and  circuity  of  action  is  avoided,  by  permitting  him  to  recover,  the 
value  or  amount  of  his  special  property  or  interest  alone.  He  is  thus 
fully  indemnified,  the  balance  of  the  value  is  with,  those  entitled  to  it, 
and  the  whole  controversy  is  thus  settled  in  a  single  suit. 

The  court  directed  that  the  damages  should  be  reduced  to  SI 5.20. 

Note.  —  See  accord,  Brierly  v.  Kendall,  17  Q.  B.  937;  Benjamin 
y.  Stremple,  13  111.  466. 


WILBRAHAM  v.  SNOW. 

2  Saunders,  46.     1669. 

Trover,  upon  special  verdict;  the  case  was  this;  the  plaintiff, 
being  sheriff,  seized  goods  in  execution  by  virtue  of  the  v/rit  of  fieri 
facias;  and  afterwards,  and  before  they  v>-ere  sold,  the  defendant  took 
and  carried  them  away,  and  converted  them  to  his  owm  use;  for 
which  the  plaintiff  brought  his  action.  And  on  the  first  argument  it 
was  adjudged  that  the  action  well  lies;  and  that  the  plaintiff,  being 
sheriff,  has  such  a  property  in  the  goods,  by  seizing  them  in  execu- 
tion, that  he  may  maintain  an  action  of  trespass  or  trover  at  his  elec- 
tion; and  judgment  was  given  for  the  plaintiff  nisi,  etc.,  but  it  was 
not  moved  afterwards. ' 

Note.  —  See,  accord,  Gihhs  v.  Chase,  10  Mass.  125. 

A  sheriff  may  bail  the  chattel  to  another  for  safekeeping,  and  such 
receiptor  may  maintain  trover  if  the  chattel  is  taken  out  of  his  pos- 
session by  a  third  person.  Poole  v.  Symonds,  1  N.H.  289;  Robinson 
V.  Besarick,  156  Mass.  141,  144. 


82  ARMORY    V.    DELAMIRIE.  ICHAP.  II, 


SECTION  2. 
RIGHTS  OF  A  FINDER. 


ARMORY  V.  DELAMIRIE. 

1  strange,  505.     1722. 

The  plaintiff  being  a  chimney  sweeper's  boy  found  a  jewel  and 
carried  it  to  the  defendant's  shop  (who  was  a  goldsmith)  to  know 
what  it  was,  and  delivered  it  into  the  hands  of  the  apprentice,  who 
under  pretense  of  weighing  it,  took  out  the  stones,  and  calling  to  the 
master  to  let  him  know  it  came  to  three  halfpence,  the  master  offered 
the  boy  the  money,  who  refused  to  take  it,  and  insisted  to  have  the 
thing  again;  whereupon  the  apprentice  delivered  him  back  the 
socket  without  the  stones.  And  now  in  trover  against  the  master 
these  points  were  ruled:  — 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  such  finding 
acquire  an  absolute  property  or  ownership,  yet  he  has  such  a  prop- 
erty as  will  enable  him  to  keep  it  against  all  but  the  rightful  owner, 
and  consequently  may  maintain  trover.  .  .  , 


LAWRENCE  v.  BUCK. 

62  Me.  275.     1874. 

On  report. 

Replevin  of  a  chain  cable,  to  which  both  parties  claimed  the  title 
by  having  found  it  in  the  Kennebec  River,  near  the  dam,  in  July, 
1870.  When  the  plaintiffs  discovered  it,  the  chain  lay  coiled  up  in  a 
little  pile  near  a  place  which  is  dry  when  the  dam  is  out,  as  it  then 
was,  the  end  of  the  cable  running  off  toward  the  dam,  in  water  about 
a  foot  or  eighteen  inches  deep.  They  hauled  out  about  sixty  feet  of 
the  chain  upon  some  logs  that  were  grounded  and  out  of  water  there, 
the  end  being  fast  under  water.  As  it  was  then  growing  dark  they  left 
for  the  night,  and  when  they  returned  for  it  the  next  morning  it  had 
been  removed  by  the  defendants,  who  claimed  that  they  found  the 
chain  and  coiled  it  up,  in  the  manner  before  described,  having 
dragged  it  into  shoal  water  for  that  purpose,  and  unfastened  the  end 
that  was  round  a  cedar  buoy  in  the  dam,  several  days  before  the 
plaintiffs  saw  it ;  that  while  the  defendants  were  trying  to  remove  the 
gravel  in  which  a  portion  of  the  chain  was  imbedded,  they  were 


SECT.  II.]  CLARK    V.    MALONEY.  83 

called  away  to  their  work  on  the  railroad  bridge.  Soon  after,  they 
borrowed  a  rope  and  blocks  at  the  railroad  shop  and  went  to  draw 
out  the  chain.  They  found  that  in  the  mean  time,  somebody  had 
taken  out  of  the  water  the  end  they  had  coiled  up,  and  dra'UTi  it  out 
upon  the  logs.  The  defendants  attached  their  tackle,  drew  out  the 
chain,  and  carried  it  to  the  railroad  shop,  where  it  was  when  replevied. 

Danforth,  J.  This  action  is  replevin  of  a  chain  cable  which  the 
evidence  shows  to  have  been  lost  by  the  original  owners.  Such 
property  belongs  to  the  first  finder  as  against  all  persons  but  the 
loser.  The  testimony  in  this  case  clearly  shows  that  the  defendants 
were  the  first  finders,  and  (if  it  were  necessary)  that,  before  the 
finding  of  the  plaintiffs,  they  had  taken  possession  by  such  acts  of 
ownership  as  the  nature  and  condition  of  the  propertj^,  under  the 
circumstances,  allowed;  and  further,  that  from  the  first  they  had 
no  intention  to  abandon.  It  further  appears  that  the  first  complete 
possession  by  entire  removal  from  the  place  where  the  property  was 
found  was  in  the  defendants. 

There  is  no  testimony  in  the  case  upon  which  to  base  judgment 
for  damages  occasioned  by  its  detention,  and  only  nominal  damages 
can  be  awarded,  and  an  order  that  the  cable  be  restored  to  the 
defendants. 

Judgment  for  a  return- 


CLARK  V,  MALONEY. 

3  Harr.  (Del.)  68.     18.39. 

Action  of  trover  to  recover  the  value  of  ten  white  pine  logs.  The 
logs  in  question  were  found  by  plaintiff  floating  in  the  Delaware 
Bay  after  a  great  freshet,  were  taken  up  and  moored  with  ropes  in 
the  mouth  of  Mispillion  Creek.  They  were  afterwards  in  the  posses- 
sion of  defendants,  who  refused  to  give  them  up,  alleging  that  they 
had  found  them  adrift  and  floating  up  the  creek. 

Bayard,  Chief  Justice,  charged  the  jury:  The  plaintiff  must  show 
first,  that  the  logs  were  his  property;  and  secondly,  that  they  were 
converted  by  the  defendants  to  their  own  use.  In  support  of  his 
right  of  property,  the  plaintiff  relies  upon  the  fact  of  his  possession  of 
the  logs.  They  were  taken  up  by  him,  adrift  in  the  Delaware  Bay, 
and  secured  by  a  stake  at  the  mouth  of  MispilKon  Creek.  Possession 
is  certainly  ■prima  facie  evidence  of  property.  It  is  called  prima  facie 
evidence  because  it  may  be  rebutted  by  evidence  of  better  title,  but 
in  the  absence  of  better  title  it  is  as  effective  a  support  of  title  as  the 
most  conclu.sive  evidence  could  be.  It  is  for  this  reason,  that  the 
finder  of  a  chattel,  though  he  does  not  acquire  an  absolute  property  in  it, 
yet  has  such  a  property  as  will  enable  him  to  keep  it  against  all  but  the 


84  ELWES    V.    BRIGG    GAS    COMPANY.  [CHAF.  H. 

rightful  owner.  The  defense  consists,  not  in  showing  that  the  de- 
fendants are  the  rightful  owners,  or  claim  under  the  rightful  owTier; 
but  that  the  logs  were  found  by  them  adrift  in  Mispillion  Creek, 
having  been  loosened  from  their  fastening  either  by  accident  or 
design,  and  they  insist  that  their  title  is  as  good  as  that  of  the  plain- 
tiff. But  it  is  a  well-settled  rule  of  law  that  the  loss  of  a  chattel  does 
not  change  the  right  of  property;  and  for  the  same  reason  that  the 
original  loss  of  these  logs  bj-  the  rightful  OTNiier  did  not  change  his 
absolute  property  in  them,  but  he  might  have  m.aintained  trover 
against  the  plaintiff  upon  refusal  to  deliver  them,  so  the  subsequent 
loss  did  not  divest  the  special  property  of  the  plaintiff.  It  follows, 
therefore,  that  as  the  plaintiff  has  shown  a  special  property  in  these 
logs,  which  he  never  abandoned,  and  which  enabled  him  to  keep 
them  against  all  the  world  but  the  rightful  owner,  he  is  entitled  to  a 
verdict. 

Verdict  for  the  plaintiff. 


ELWES  V.  BRIGG  GAS  COMPANY. 

L.  R.   33  Chan.  Div.  562.     1886. 

By  lease,  dated  the  7th  of  December,  1885,  the  plaintiff,  V.  D.  H. 
Gary  Elwes,  who  was  lord  of  the  manor  of  Brigg,  and  tenant  for  life 
in  possession  of  the  Elvv'es  family  estates,  in  exercise  of  the  power 
limited  to  him  by  a  settlement  of  the  5th  of  April,  1856,  appointed 
and  demised  unto  the  Brigg  Gas  Company  a  piece  of  land  in  Brigg, 
forming  part  of  the  Elwes  estates,  for  a  term  of  ninety-nine  years,  at 
a  yearly  rent  of  £4  lis.  4:d.,  reserving  unto  the  lessor  and  his  assigns, 
and  to  the  person  or  persons  for  the  time  being  entitled  under  the 
said  settlement  to  the  Elwes  estates  in  remainder  or  reversion  ex- 
pectant on  the  death  of  the  lessor,  "all  mines  and  minerals,  and  all 
watercourses  which  nov/  are  or  during  the  term  hereby  granted  shall 
be  upon  or  under  the  said  piece  of  land  and  premises,  with  liberty 
to  enter  thereon  respectively  from  time  to  time  for  the  purpose  of 
opening,  cleansing,  and  repairing  such  watercourses."  The  lease 
contained  a  covenant  by  the  lessee  company  to  erect  a  boundary 
wall,  and  that  the  gas  holders,  gas  tanks,  erections,  sheds,  and 
buildings  of  every  description  which  might  be  erected  and  set  up  on 
the  demised  premises  should  be  made  under  the  inspection  and  to 
the  satisfaction  of  the  surveyor  or  agent  for  the  time  being  of  the 
lessor,  and  according  to  plans  and  specifications  to  be  previouslj^ 
approved  in  writing  by  him ;  and  that  they  would  erect  and  set  up 
every  such  gas  holder,  etc.,  with  the  best  bricks,  timber,  and  other 
materials  as  should  from  time  to  time  be  approved  and  sanctioned 
by  such  surveyor  or  agent  of  the  lessor. 


SECT.  II.]  ELWES    V.    BRIGG    GAS    COMPANY.  85 

And  the  lessor  thereby  covenanted  with  the  lessees,  their  suc- 
cessors and  assigns,  that  on  their  pacing  the  yearly  rent  thereby 
reserved,  and  observing  and  performing  the  covenants  by  them 
therein  contained,  they  should  hold  and  enjoy  the  premises  and 
all  buildings  to  be  erected  thereon  during  the  term  of  ninety-nine 
years  without  any  interruption  by  the  lessor  or  any  person  or 
persons  claiming  under  him  or  under  the  settlement,  with  a  proviso 
that  at  the  expiration  or  sooner  determination  of  the  term  thereby 
granted  the  lessees  or  their  assigns  might  take  down  and  remove  all 
trade  fixtures,  implements,  and  things  in  or  about  the  demised 
premises,  but  not  the  boundary  wall,  erections,  sheds,  and  buildings, 
all  of  which  would  form  the  property  of  the  lessor,  with  an  option  to 
the  lessor  to  take  the  trade  fixtures  at  a  valuation. 

In  iVpril,  1888,  the  defendant  company,  in  the  course  of  their 
excavations  for  the  purpose  of  erecting  a  gas  holder  on  the  demised 
land,  discovered  embedded  in  the  clay,  some  feet  below  the  surface, 
and  within  a  few  yards  of  the  river  Ancholme,  an  ancient  prehistoric 
ship  or  boat  about  forty-five  feet  long,  and  apparently  hollowed  out 
of  a  large  oak  tree. 

On  the  1st  of  May  the  plaintiff  caused  a  notice  to  be  served  upon 
the  clerk  of  the  defendant  company''  claiming  the  boat  and  requiring 
it  to  be  delivered  up. 

The  defendant  company  declined  to  comply  wdth  the  plaintiff's 
demand  and  asserted  that  the  boat  belonged  to  them. 

To  determine  this  question  the  present  action  was  brought. 

Chitty,  J.  —  The  facts  are  not  in  dispute.  The  boat  is  very  an- 
cient ;  the  parties  to  the  action  concur  in  the  statement,  more  or  less 
conjectural,  that  it  is  some  two  thousand  years  old,  and  that  having 
been  abandoned  or  left  derelict  by  its  original  owners  on  what  is 
now  the  bank  of  the  river  x4.ncholme,  it  became  by  the  operation 
of  natural  causes,  such  as  by  sinking  in  the  ooze  and  the  deposit  of 
alluvial  soil,  buried  in  the  earth;  and  so  it  remained  for  many  cen- 
turies, until  it  was  recently  discovered  and  excavated  by  the  de- 
fendants. When  discovered  it  was  Ijang  embedded  in  the  clay  at  a 
depth  from  the  surface  of  four  feet  at  one  end  and  six  feet  at  the 
other;  and  now  that  it  is  brought  to  the  surface  it  appears  to  be  a 
boat  of  rude  construction,  forty-five  feet  in  length,  hollowed  out  of  a 
single  oak  tree.  The  wood  has  not  become  petrified  or  fossilized,  but 
retains  the  properties  of  wood. 

A  discussion  took  place  at  the  bar  whether  the  boat,  just  previ- 
ously to  its  discovery,  ought  in  point  of  law  to  be  considered  as  a 
mineral,  or  as  part  of  the  soil  in  which  it  was  embedded,  or  as  still 
retaining  the  character  of  a  chattel.  It  was  one  or  other  of  these 
three  things.  In  my  opinion,  for  the  reasons  subsequently  to  be 
given,  it  is  not  necessary  to  decide  which  it  was.  In  support  of  the 
contention  that  it  was  a  mineral,  reference  was  made  to  the  case  of 


86  ELWES    V.    BRIGG    GAS    COMPANY.  [CHAP.  H. 

Hext  V.  Gill,  Law  Rep.  7  Ch.  699,  and  to  the  statement  in  the  judg- 
ment of  Lord  Justice  INIellish  (with  which  Lord  Justice  James  con- 
curred), that  the  term  "minerals"  includes  every  substance  wliich 
can  be  got  from  underneath  the  earth  for  the  purpose  of  profit.  The 
terms  of  this  definition  are  wide  enough  to  include  the  boat;  but  I 
am  not  aware  that  the  term  "  minerals  "  has  ever  been  held  to  include 
anj^hing  except  that  which  is  part  of  the  natural  soil.  Unquestion- 
ably coal  is  deemed  in  law  a  part  of  the  natural  soil,  without  regard 
to  what  geologists  may  shew  to  have  been  its  origin.  In  law  the 
natural  processes  by  which  the  trees  of  a  forest  have  become  coal  are 
not  investigated:  the  result  only  is  considered.  But  the  boat  has  not 
become  petrified  or  fossilized;  it  always  has  been  distinguishable 
from  the  natural  soil  itself.  If,  therefore,  I  were  required  to  decide 
the  question,  I  should  hold  that  it  is  not  a  mineral.  In  support  of 
the  contention  that  it  ought  to  be  deemed  in  law  as  part  of  the  soil 
in  which  it  was  embedded,  reference  was  made  to  the  principle  em- 
bodied in  the  maxim,  "Quicquid  plantatur,"  or  as  it  is  sometimes 
stated  (see  Broom's  Legal  Maxims,  6th  ed.  p.  376,  n.,  and  the  judg- 
ment in  Climie  v.  Wood,  Law  Rep.  3  Ex.  257,  260),  "fixatur  solo,  solo 
cedit.'^  This  principle  is  an  absolute  rule  of  law,  not  depending  on 
intention;  for  instance,  if  a  man  digs  in  the  land  of  another,  and  per- 
manently fixes  in  the  soil  stones  or  bricks,  or  the  like,  as  the  founda- 
tion of  a  house,  the  stones  or  bricks  become  the  property  of  the 
owner  of  the  soil,  whatever  may  have  been  the  intention  of  the  person 
who  so  placed  them  there,  and  even  against  his  declared  intention 
that  they  should  remain  his  property.  Nor  does  it  appear  to  me  to  be 
material  that  the  things  should  have  been  placed  there  by  the  hand  of 
man;  it  would  seem  to  be  sufficient  if  they  have  become  permanently 
fixed  in  the  soil  by  the  operation  of  natural  causes.  In  support  of  the 
contention  that  the  boat  always  remained  a  chattel,  it  was  or  may  be 
urged  that,  though  embedded  in  the  soil,  it  always  was  distinguish- 
able from  the  soil  itself,  and  preserved  its  original  character  of  a 
chattel,  which  it  certainly  now  is.  Not  long  ago  there  was  discovered, 
in  the  course  of  making  excavations  in  Hampshire,  a  jar  containing 
Roman  coins  —  not  gold  or  silver  coins,  and  therefore  not  falling 
within  the  royal  prerogative  of  treasure  trove :  apparently  the  coins 
formed  the  small  change  of  the  treasure  of  a  Roman  legion.  Could  it 
be  said  that  the  jar  or  the  coins  were  part  of  the  soil  within  the 
principle  referred  to?  Similarly  a  short  time  since  there  was  found 
beneath  the  soil  (I  believe  in  Devonshire)  a  Roman  lamp  of  ingen- 
ious construction  made  of  lead,  and  in  an  excellent  state  of  preserva- 
tion: a  similar  question  may  be  asked  of  the  lamp.  But,  as  I  have 
said,  it  is  not  necessary  to  decide  these  or  the  like  interesting  ques- 
tions in  the  present  case. 

The  first  question  which  does  actually  arise  in  this  case  is  whether 
the  boat  belonged  to  the  plaintiff  at  the  time  of  the  granting  of  the 


SECT.  II.J  ELWES    V.    BRIGG    GAS    COMPANY.  87 

lease.  Ijiold  that  it  did,  whether  it  ought  to  be  regarded  as  a  mineral, 
or  as  part  of  the  soil  within  the  maxim  above  cited,  or  as  a  chattel. 
If  it  was  a  mineral  or  part  of  the  soil  in  the  sense  above  indicated, 
then  it  clearly  belonged  to  the  owners  of  the  inheritance  as  part  of 
the  inheritance  itself.  But  if  it  ought  to  be  regarded  as  a  chattel,  I 
hold  the  property  in  the  chattel  was  vested  in  the  plaintiff,  for  the 
following  reasons.  Being  entitled  to  the  inheritance  under  the  settle- 
ment of  1856  and  in  lawful  possession,  he  was  in  possession  of  the 
ground,  not  merely  of  the  surface,  but  of  everything  that  lay  beneath 
the  surface  down  to  the  centre  of  the  earth,  and  consequently  in 
possession  of  the  boat.  The  principle  of  the  decision  of  the  court  in 
Reg.  V.  Rowe,  Bell's  C.  C.  93,  appears  to  me  to  apply.  There  the 
question  was  whether  the  property  in  some  iron  Ijdng  at  the  bottom 
of  a  canal  was  well  laid  in  the  indictment  in  the  canal  company.  The 
water  had  been  taken  out  for  the  purpose  of  cleaning  the  canal,  and 
the  prisoner  was  indicted  for  stealing  the  iron  which  had  been 
dropped  into  the  canal  by  the  owner.  The  court  held  that  the  canal 
company  had  a  sufficient  property  in  and  possession  of  the  iron  to 
support  the  indictment.  If  the  fact  of  the  iron  having  been  left  on 
the  surface  of  the  ground  covered  by  water  was  sufficient  to  give  in 
law  possession  of  the  chattel  to  the  person  in  possession  of  the  land, 
it  appears  to  follow  a  fortiori  that  the  facts  of  this  case  justify  me  in 
holding  that  the  plaintiff  was  in  possession  of  the  boat.  For  the  boat 
was  embedded  in  the  land;  a  mere  trespasser  could  not  have  taken 
possession  of  it,  he  could  only  have  come  at  it  by  further  acts  of  tres- 
pass involving  spoil  and  waste  of  the  inheritance:  Blades  v.  Higgs, 
13  C.  B.  (N.S.)  844;  11  H.  L.  C.  621,  and  Holmes'  The  Common  Law, 
title  "Possession,"  page  223.  The  plaintiff  then,  being  thus  in  pos- 
session of  the  chattel,  it  follows  that  the  property  in  the  chattel  was 
vested  in  him.  Obviously  the  right  of  the  original  owmer  could  not  be 
estah)lished ;  it  had  for  centuries  been  lost  or  barred,  even  supposing 
that  the  property  had  not  been  abandoned  when  the  boat  was  first 
left  on  the  spot  where  it  was  found.  The  plaintiff,  then,  had  a  lawful 
possession,  good  against  all  the  world,  and  therefore  the  property  in 
the  boat.  In  my  opinion  it  makes  no  difference,  in  these  circum- 
stances, that  the  plaintiff  was  not  aware  of  the  existence  of  the  boat. 

The  defendants'  claim  must  then  rest  on  the  lease,  and  what  has 
been  done  or  what  has  occurred  since  it  was  granted,  including  the 
finding  of  the  boat. 

The  boat  did  not  pass  to  them  by  the  mere  demise ;  a  lease  being 
only  a  contract  for  the  possession  and  profits  of  the  land:  Bac.  Abr. 
tit.  Leases  and  Terms  for  Years,  vol.  iv,  p.  632.  By  the  lease  the 
defendants  covenant  to  build  a  wall  round  the  demised  property', 
but  they  do  not  covenant  to  construct  a  gas  holder.  The  construc- 
tion of  such  a  work  is,  however,  contemplated  by  the  lease.  The 
covenant  by  the  lessees  in  regard  to  the  gas  holder  is  ungrammati- 


88  ELWES    V.    BRIGG    GAS    COMPANY.  [CHAP.  II. 

cally  expressed,  but  the  substance  of  it  is  clear.  It  is  a  covenant  to 
the  effect  that  any  gas  holder  which  they  may  construct  shall  be  in 
accordance  with  plans  previously  approved  of  on  behalf  of  the  lessor. 
Plans  were  accordingly  submitted  and  approved.  These  plans  in- 
volved the  excavation  of  the  ground  where  the  boat  lay  embedded, 
and  to  a  depth  below  the  bottom  of  the  boat.  The  defendants  dis- 
covered the  boat  in  making  these  excavations  pursuant  to  the  plans. 
The  lease  did  not  give  any  license  to  make  the  excavations,  but  the 
approval  of  the  plans  was  equivalent  in  law  to  a  license  to  make  the 
excavations.  The  plans,  however,  are  silent  as  to  what  is  to  be  done 
with  the  soil  excavated.  In  the  circumstances  some  permission 
ought  to  be  implied  as  to  the  removal  and  disposal  of  what  might  be 
excavated.  The  question  is  as  to  the  extent  of  this  implied  permis- 
sion. As  against  the  lessors  the  permission  ought  not  to  be  carried 
beyond  what  may  be  reasonably  inferred  to  have  been  the  intention 
of  the  parties.  The  excavations  were  to  be  made  to  a  depth  of  fifteen 
feet;  obviously  it  was  not  the  intention  of  the  parties  that  the  soil 
excavated  should  be  piled  up  on  other  parts  of  the  small  plot  of 
ground  comprised  in  the  lease.  The  implied  permission  to  remove 
and  dispose  ought  then  to  extend  to  what  the  parties  might  fairly  be 
deemed  to  have  contemplated  would  be  found  in  making  the  excava- 
tions; but  beyond  this  point  it  ought  not  to  be  carried.  The  exist- 
ence of  the  boat  was  unknown  and  its  discovery  was  not  contem- 
plated. In  my  opinion,  then,  the  license  to  remove  and  dispose 
extended  to  the  clay  and  ordinary  soil  likely  to  be  found  in  pursuing 
the  license  to  excavate,  but  it  did  not  extend  to  what  was  unknown 
and  not  contemplated,  and  therefore  did  not  comprise  the  boat.  If 
the  boat  ought  to  be  considered  as  a  mineral  (which  I  think  it  was 
not),  then  it  fell  within  the  express  exception  of  minerals  contained  in 
the  lease;  against  this  express  exception  no  implication  ought  to  be 
raised.  If,  however,  the  boat  ought  to  be  considered  as  part  of  the- 
soil  by  reason  of  its  having  become  permanently  affixed  to  it,  or  if  it 
ought  to  be  considered  as  a  chattel,  it  would  be  unreasonable  to  infer 
that  it  was  intended  to  be  included.  Further,  if  it  ought  to  be 
regarded  as  a  chattel,  the  defendants  did  not  acquire  any  property 
in  the  chattel  by  the  mere  finding  as  against  the  plaintiff,  who  upon 
the  grounds  already  stated  was  the  owner  of  the  chattel. 

For  these  reasons  I  hold  that  the  plaintiff  is  entitled  to  the  boat. 

The  defendants  were  accordingly  ordered  to  deliver  the  boat  to 
the  plaintiff,  and  to  pay  the  costs  of  the  action. 

Note.  —  In  Goddard  v.  Winchell,  86  Iowa,  71,  the  court  held  that 
an  aerolite  belonged  to  the  owTier  of  the  land  upon  which  it  fell,  and 
not  to  the  person  who  discovered  it.  See,  accord,  Oregon  Iron  Co.  v. 
Hughes,  47  Oreg.  313, 


SECT,  n.]  BRIDGES    V.    HAWKESWORTH.  89 

BRIDGES  V.  HAWKESWORTH.' 

21  L.  J.,  Q.  B.  75.     1852. 

This  was  an  appeal  brought  by  the  plaintiff  from  the  Westmin- 
ster County  Court. 

The  plaintiff  was  a  traveller  for  a  large  firm  with  which  the  defend- 
ant, who  was  a  shopkeeper,  had  dealings.  On  one  occasion  (October, 
1847)  the  plaintiff,  who  had  called  at  the  defendant's  on  business, 
on  leaving  the  defendant's  shop  noticed  and  picked  up  a  small  par- 
cel which  was  lying  on  the  shop  floor.  He  immediately  shewed  it 
to  the  shopman,  and  on  opening  it  found  it  contained  bank  notes 
to  the  value  of  551.  The  plaintiff  told  the  defendant  who  came  in 
that  he  had  found  a  parcel  of  notes,  and  requested  the  defendant  to 
keep  them  to  deliver  to  the  owner.  The  defendant  advertised  the 
finding  of  them  in  the  newspapers,  stating  that  they  should  be  re- 
stored to  the  owner  on  his  properly  describing  them  and  paying  the 
expenses.  Three  years  having  elapsed  and  no  owner  appearing  to 
claim  them,  the  plaintiff  applied  to  the  defendant  for  them,  offering 
to  pay  the  expense  of  the  advertisements,  and  to  indemnify  the 
defendant  against  any  claim  in  respect  to  them.  The  defendant 
refused  to  deliver  them  up,  and  the  plaintiff  consequently  brought 
a  plaint  in  the  County  Court  of  Westminster  to  recover  the  notes. 
The  Judge  decided  that  the  defendant  was  entitled  to  keep  them  as 
against  the  plaintiff,  and  gave  judgment  for  the  defendant.  It  was 
found  in  the  case  that  the  plaintiff  when  he  handed  the  notes  over 
to  the  defendant  to  deliver  to  the  true  owner,  did  not  intend  to  give 
up  any  title  to  them  that  he  might  possess. 

Judgment  was  now  delivered  by  — 

Patteson,  J.  —  The  notes  which  are  the  subject  of  this  action 
were  evidently  dropped  by  mere  accident  in  the  shop  of  the  defend- 
ant by  the  owner  of  them.  The  facts  do  not  warrant  the  supposition 
that  they  had  been  deposited  there  intentionally,  nor  has  the  case 
been  at  all  put  upon  that  ground.  The  plaintiff  found  them  on  the 
floor,  they  being  manifestly  lost  by  some  one.  The  general  right 
of  the  finder  to  any  article  which  has  been  lost  as  against  all  the 
world  except  the  true  owner,  was  established  in  the  case  of  Armory 
v.  Delamirie,  which  has  never  been  disputed.  This  right  would 
clearly  have  accrued  to  the  plaintiff  had  the  notes  been  picked  up  by 
him  outside  the  shop  of  the  defendant;  and  if  he  once  had  the  right, 
the  case  finds  that  he  did  not  intend  by  delivering  the  notes  to  the 
defendant  to  waive  the  title  (if  any)  which  he  had  to  them,  but  they 
were  handed  to  the  defendant  merely  for  the  purpose  of  delivering 
them  to  the  owner  should  he  appear.  Nothing  that  was  done  after- 
wards has  altered  this  state  of  things;  the  advertisements  indeed 
in  the  newspapers  referring  to  the  defendant  had  the  same  object; 


90  BRroGES    V.   HAWKESWORTH.  [CHAP.  II. 

the  plaintiff  has  tendered  the  expense  of  those  advertisements  to  the 
defendant,  and  offered  him  an  indemnity  against  any  claim  to  be 
made  by  the  real  owner,  and  has  demanded  the  notes.  The  case, 
therefore,  resolves  itself  into  the  single  point,  on  which  it  appears 
that  the  learned  Judge  decided  it :  namely,  whether  the  circumstance 
of  the  notes  being  found  inside  the  defendant's  shop,  gives  him,  the 
defendant,  the  right  to  have  them  as  against  the  plaintiff  who  found 
them.  There  is  no  authority  to  be  found  in  our  law  directly  in  point. 
Perhaps  the  nearest  case  is  that  of  Merry  v.  Green,  but  it  differs  in 
many  respects  from  the  present.  We  were  referred  in  the  course  of 
the  argument  to  the  learned  work  of  Von  Savigny,  edited  b}^  Chief 
Justice  Perry,  but  even  this  work,  full  as  it  is  of  subtle  distinctions 
and  nice  reasonings,  does  not  afford  a  solution  of  the  present  question. 
It  was  well  asked  on  the  argument,  if  the  defendant  has  the  right, 
when  did  it  accrue  to  him?  If  at  all,  it  must  have  been  antecedent 
to  the  finding  by  the  plaintiff,  for  that  finding  could  not  give  the  de- 
fendant any  right.  If  the  notes  had  been  accidentally  kicked  into  the 
street,  and  then  found  by  some  one  passing  by,  could  it  be  contended 
that  the  defendant  was  entitled  to  them,  from  the  mere  fact  of  their 
having  been  originally  dropped  in  his  shop?  If  the  discovery  had 
not  been  communicated  to  the  defendant,  could  the  real  owTier  have 
had  any  cause  of  action  against  him,  because  they  were  found  in  his 
house?  Certainly  not.  The  notes  never  were  in  the  custody  of  the 
defendant,  nor  within  the  protection  of  his  house  before  they  were 
found,  as  they  would  have  been  had  they  been  intentionally  depos- 
ited there,  and  the  defendant  has  come  under  no  responsibility, 
except  from  the  communication  made  to  him  by  the  plaintiff,  the 
finder,  and  the  steps  taken  by  way  of  advertisement.  These  steps 
were  really  taken  by  the  defendant  as  the  agent  of  the  plaintiff, 
and  he  has  been  offered  an  indemnity,  the  sufficiency  of  which  is 
not  disputed.  We  find,  therefore,  no  circumstances  in  this  case  to 
take  it  out  of  the  general  rule  of  law,  that  the  finder  of  a  lost  article 
is  entitled  to  it  as  against  all  parties  except  the  real  owner;  and  we 
think  that  rule  must  prevail,  and  that  the  learned  Judge  was  mis- 
taken in  holding  that  the  place  in  which  they  were  found  makes 
any  legal  difference.  Our  judgment  therefore  is,  that  the  plaintiff  is 
entitled  to  these  notes  as  against  the  defendant,  and  that  the  judg- 
ment of  the  court  below  must  be  reversed,  and  judgment  given  for 
the  plaintiff  for  50?.  The  plaintiff  to  have  the  costs  of  the  appeal. 

Judgment  reversed. 


SECT.  II.]       SOUTH   STAFFORDSHIRE    WATER    CO.   V.  SHARMAN.  91 

SOUTH  STAFFORDSHIRE  WATER  CO.  v.  SHARMAN. 

[1896.]     2  Q.  B.  D.  44. 

Appeal  from  the  decision  of  the  county  court  of  Staffordshire 
holden  at  Lichfield. 

Under  a  conveyance  dated  January  6,  1872,  from  the  mayor, 
aldermen,  and  citizens  of  the  city  of  Lichfield,  the  plaintiffs  were  the 
owners  in  fee  simple  in  possession  of  the  land  covered  by  the  ^Minster 
Pool  in  that  cit5^ 

In  August,  1895,  the  plaintiffs  employed  the  defendant,  together 
with  a  number  of  other  workmen,  to  clean  out  the  pool.  During 
the  operation  several  articles  of  interest  were  found,  and  the  defend- 
ant, while  so  employed,  found  in  the  mud  at  the  bottom  of  the  pool 
two  gold  rings.  The  plaintiffs  demanded  the  rings;  but  he  refused 
to  deliver  them  up,  and  placed  them  in  the  hands  of  the  police 
authorities,  who,  by  advertisement  and  otherwise,  endeavoured  to 
find  the  o'WTier  of  the  rings.  Ultimately,  being  unsuccessful  in  find- 
ing the  real  o^\^^er,  the  police  authorities  returned  the  rings  to  the 
defendant. 

The  plaintiffs  then  sued  the  defendant  in  detinue  for  the  recovery 
of  the  rings. 

It  was  proved  at  the  trial  that  there  was  no  special  contract 
between  the  plaintiffs  and  the  defendant  as  to  giving  up  any  articles 
that  might  be  found. 

The  county  court  judge  gave  judgment  for  the  defendant,  holding, 
on  the  authority  of  Armory  v.  Delamirie,  1  Str.  505,  and  Bridges 
V.  Hawkesworth,  21  L.  J.  (Q.  B.),  75,  that  the  defendant  had  a  good 
title  against  all  the  world  except  the  real  owmer. 

The  plaintiffs  appealed. 

Lord  Russell  of  Killowen,  C.J.  In  my  opinion,  the  county 
court  judge  was  wTong,  and  his  decision  must  be  reversed  and  judg- 
ment entered  for  the  plaintiffs.  The  case  raises  an  interesting  ques- 
tion. The  action  was  brought  in  detinue  to  recover  the  possession 
of  two  gold  rings  from  the  defendant.  The  defendant  did  not  deny 
that  he  had  possession  of  the  rings,  but  he  denied  the  plaintiffs' 
title  to  recover  them  from  him.  Under  those  circumstances  the 
burden  of  proof  is  cast  upon  the  plaintiffs  to  make  out  that  they 
have,  as  against  the  defendant,  the  right  to  the  possession  of  the 
rings. 

Now,  the  plaintiffs,  under  a  conveyance  from  the  corporation 
of  Lichfield,  are  the  owners  in  fee  simple  of  some  land  on  which  is 
situate  a  pool  known  as  the  Minster  Pool.  For  purposes  of  their  owm 
the  plaintiffs  employed  the  defendant,  among  others,  to  clean  out 
that  pool.  In  the  course  of  that  operation  several  articles  of  interest 
were  found,  and  amongst  others  the  two  gold  rings  in  question 


92  SOUTH    STAFFORDSHIRE    WATER    CO.   V.   SHARMAN.       [CHAP,  II. 

were  found  by  the  defendant  in  the  mud  at  the  bottom  of  the 
pool. 

The  plaintiflFs  are  the  freeholders  of  the  locus  in  quo,  and  as  such 
they  have  the  right  to  forbid  anybody  coming  on  their  land  or  in 
any  way  interfering  with  it.  They  had  the  right  to  say  that  their 
pool  should  be  cleaned  out  in  any  way  that  i\xey  thought  fit,  and  to 
direct  what  should  be  done  wdth  an^-thing  found  in  the  pool  in  the 
course  of  such  cleaning  out.  It  is  no  doubt  right,  as  the  counsel  for 
the  defendant  contended,  to  say  that  the  plaintiffs  must  shew  that 
they  had  actual  control  over  the  locus  in  quo  and  the  things  in  it ; 
but  under  the  circumstances,  can  it  be  said  that  the  Minster  Pool 
and  whatever  might  be  in  that  pool  were  not  under  the  control  of 
the  plaintiffs?  In  my  opinion,  they  were.  The  case  is  like  the  case, 
of  which  several  illustrations  were  put  in  the  course  of  the  argument, 
where  an  article  is  found  on  private  property,  although  the  o"VMiers 
of  that  property  are  ignorant  that  it  is  there.  The  principle  on  which 
this  case  must  be  decided,  and  the  distinction  which  must  be  drawm 
between  this  case  and  that  of  Bridges  v.  Hawkesworth,  21  L.  J.  (Q.  B.), 
75,  is  to  be  found  in  a  passage  in  Pollock  and  Wright's  Essay  on 
Possession  in  the  Common  Law,  p.  41:  ^^The-^jLOSsession  of  land 
carries  with  it  in  general,  by  our  law,  possession^f  everji;hing  which 
is  attached  to'or  under  that  land,  and,  in  tlio  ar.-cncc  of  a  bettor  title 
elsewhere,  the  right  to  possess  it  also.  And  it  makes  no  difference 
that  the  possessor  is  not  aware  of  the  thing's  existence.  ...  It  is 
free  to  any  one  who  requires  a  specific  intention  as  part  of  a  dc  facto 
possession  to  treat  this  as  a  positive  rule  of  law.  But  it  seems  prefer- 
able to  say  that  the  legal  possession  rests  on  a  real  rfe /ado  possession 
constituted  by  the  occupier's  general  power  and  intent  to  exclude 
unauthorized  interference." 

That  is  the  ground  on  which  I  prefer  to  base  my  judgment.  There 
is  a  broad  distinction  between  this  case  and  those  cited  from  Black- 
stone.  Those  were  cases  in  which  a  thing  was  cast  into  a  public  place 
or  into  the  sea  —  into  a  place,  in  fact,  of  which  it  could  not  be  said 
that  any  one  had  a  real  de  facto  possession,  or  a  general  power  and 
intent  to  exclude  unauthorized  interference. 

The  case  of  Bridges  v.  Hawkesworth  stands  by  itself,  and  on  special 
grounds;  and  on  those  groimds  it  seems  to  me  that  the  decision  in 
that  case  was  right.  Some  one  had  accidentally  dropped  a  bundle  of 
bank-notes  in  a  public  shop.  The  shopkeeper  did  not  know  they 
had  been  dropped,  and  did  not  in  any  sense  exercise  control  over 
them.  The  shop  was  open  to  the  public,  and  they  were  invited  to 
come  there.  A  customer  picked  up  the  notes  and  gave  them  to  the 
shopkeeper  in  order  that  he  might  advertise  them.  The  owner  of  the 
notes  was  not  found,  and  the  finder  then  sought  to  recover  them  from 
the  shopkeeper.  It  was  held  that  he  was  entitled  to  do  so,  the  ground 
of  the  decision  being,  as  was  pointed  out  by  Patteson,  J.,  that  the 


SECT.  II.]  BAEKEE    V.    BATES.  93 

notes,  being  dropped  in  the  public  part  of  the  shop,  were  never  in 
the  custody  of  the  shopkeeper,  or  "within  the  protection  of  his 
house." 

It  is  somewhat  strange  that  there  is  no  more  direct  authority  on 
the  question;  but  the  general  principle  seems  to  me  to  be  that  where 
a  person  has  possession  of  house  or  land,  with  a  manifest  intention 
to  exercise  control  over  it  and  the  things  which  may  be  upon  or  in 
it,  then,  if  something  is  found  on  that  land,  whether  by  an  employee 
of  the  owner  or  by  a  stranger,  the  presumption  is  that  the  possession 
of  that  thing  is  in  the  o^vne^  of  the  locus  in  quo. 

Wills,  J.  I  entirely  agree;  and  I  will  only  add  that  a  contrary  de- 
cision would,  as  I  think,  be  a  great  and  most  unwise  encouragement 
to  dishonesty.  '  Y 

Appeal  allowed ;  judgment  for  plaintiffs. 

Note.  —  See  the  report  of  M'Dowell  v.  Ulster  Bank,  in  33  Irish 
,jaw  Times,  225  (1899).  The  plaintiff,  as  porter  to  the  defendant, 
T7as  sweeping  out  the  bank  after  four  o'clock  in  the  afternoon,  sub- 
tcsquent  to  the  time  at  which  the  bank  was  open  for  the  purposes  of 
exchange,  and  at  a  time  when  the  public  had  no  admittance  to  it. 
He  found  under  one  of  the  tables  used  by  persons  signing  checks  a 
parcel  containing  £25  in  notes.  He  handed  them  over  to  the  manager 
of  the  bank,  telling  him  how  he  had  found  them,  and  asking  him  to 
try  and  find  the  owner.  The  owner  was  not  found,  and  the  plaintiff 
claimed  the  notes.  The  court  decided  for  the  defendant,  saying: 
"I  do  not  decide  this  case  on  the  ground  laid  do^\^l  by  Lord  Russell 
in  Sharman's  Case.  I  decide  it  on  the  ground  of  the  relation  of  mas- 
ter and  servant,  and  that  it  was  by  reason  of  the  existence_of  that 
relationship  and  in  the  performance  of.  the  duties  of  that  service  that 
the  plaintiff  acquired  possession  of  this  property.  I  concfivt'  that  it 
is  the  duty  of  the  porter  of  the  bank,  who  acts  as  caretaker,  to  pick 
up  matters  of  this  description,  and  to  hand  them  over  to  the  bank. 
I  hold  that  the  possession  of  the  servant  of  the  bank  was  the  posses- 
sion of  the  bank  itself,  and  that,  therefore,  the  element  is  wanting 
which  would  give  the  title  to  the  servant  as  against  the  master.  He 
relies  as  against  his  master  on  the  possession.  In  this  case  it  was  the 
possession  of  the  bank,  and  the  servant  held  the  notes  as  servant." 


BARKER  V.  BATES. 

13  Pick.  (Mass.)  255.     1832. 

Trespass.  The  stick  in  question  was  thrown  out  of  the  sea  upon 
the  plaintiff's  land,  and  the  defendants  took  it  and  carried  it  away 
and  converted  it  to  their  own  use. 


94 


DURFEE    V.    JONES. 


[chap.  II, 


Shaw,  C.J.,  delivered  the  opinion  of  the  court.  The  sole  and 
single  question  in  the  present  case  is,  which  of  these  parties  has  the 
preferable  claim,  by  mere  naked  possession,  without  other  title^  to 
a  stick  of  timber,  driven  ashore  under  such  circumstances  as  lead  to 
a  belief  that  it  was  thrown  overboard  or  washed  out  of  some  vessel 
in  distress,  and  never  reclaimed  by  the  owner.  It  does  not  involve 
any  question  of  the  right  of  the  original  owner  to  regain  his  property, 
in  the  timber,  with  or  without  salvage,  or  the  right  of  the  sovereign 
to  claim  title  to  property  as  wreck,  or  of  the  power  and  jurisdiction 
of  the  governments,  either  of  the  commonwealth  or  of  the  United 
States,  to  pass  such  laws  and  adopt  such  regulations  on  the  subject 
of  wreck,  as  justice  and  public  policy  may  require. 

In  considering  this  question  of  the  relative  right  of  possession,  a 
preliminary  one  has  been  discussed,  which  is,  whether  the  plaintiff 
had  title  to  the  land  upon  which  the  stick  of  timber  was  found.  .  .  . 

Considering  it  as  thus  established,  that  the  place  upon  which  this 
timber  was  thrown  up  and  had  lodged,  was  the  soil  and  freehold  of 
the  plaintiff,  that  the  defendants  cannot  justify  their  entry,  for  the 
purpose  of  taking  away  or  marking  the  timber,  we  are  of  opinion 
that  such  entry  was  a  trespass,  and  that  as  between  the  plaintiff  and 
the  defendants,  neither  of  whom  had  or  claimed  any  title  except  by 
mere  possession,  the  plaintiff  had,  in  virtue  of  his  title  to  the  soil,  the 
preferable  right  of  possession,  and  therefore  that  the  plaintiff  has 
a  right  to  recover  the  agreed  value  of  the  timber,  in  his  claim  of 
damages. 


.V 


s^ 


DURFEE  V.  JONES. 


11  R.I.  588.     1877. 


Assumpsit,  heard  by  the  court,  jury  trial  being  waived. 

DuRFEE,  C.  J.  The  facts  in  this  case  are  briefly  these:  In  April., 
1874,  the  plaintiff  bought  an  old  safe  and  soon  afterwards  instructed 
his  agent  to  sell  it  again.  The  agent  offered  to  sell  it  to  the  defendant 
for  ten  dollars,  but  the  defendant  refused  to  buy  it.  The  agent  then 
left  it  with  the  defendant,  who  was  a  blacksmith,  at  his  shop  for  sale 
for  ten  dollars,  authorizing  him  to  keep  his  books  in  it  until  it  was  sold 
or  reclaimed.  The  safe  was  old-fashioned,  of  sheet  iron,  about  three 
feet  square,  having  a  few  pigeon-holes  and  a  place  for  books,  and 
back  of  the  place  for  books  a  large  crack  in  the  lining.  The  defendant 
shortly  after  the  safe  was  left,  upon  examining  it,  found  secreted 
between  the  sheet-iron  exterior  and  the  wooden  lining  a  roll  of  bills 
amounting  to  $165,  of  the  denomination  of  the  national  bank  bills 
which  have  been  current  for  the  last  ten  or  twelve  years.  Neither  the 
plaintiff  nor  the  defendant  knew  the  money  was  there  before  it  was 


SECT.  II.]  DURFEE    V.    JONES.  95 

found.  The  owner  of  the  money  is  still  unknown.  The  defendant  in- 
formed the  plaintiff's  agent  that  he  had  found  it,  and  offered  it  to  him 
for  the  plaintiff;  but  the  agent  declined  it,  stating  that  it  did  not  be- 
long to  either  himself  or  the  plaintiff,  and  advised  the  defendant  to 
deposit  it  where  it  would  be  drawing  interest  until  the  rightful  owner 
appeared.  The  plaintiff  was  then  out  of  the  city.  Upon  his  return, 
being  informed  of  the  finding,  he  immediately  called  on  the  defend- 
ant and  asked  for  the  money,  but  the  defendant  refused  to  give  it  to 
him.  He  then,  after  taking  advice,  demanded  the  return  of  the  safe 
and  its  contents,  precisely  as  they  existed  when  placed  in  the  de- 
fendant's hands.  The  defendant  promptly  gave  up  the  safe,  but  re- 
tained the  money.  The  plaintiff  brings  this  action  to  recover  it  or  its 
equivalent. 

The  plaintiff  does  not  claim  that  he  acquired,  by  purchasing  the 
safe,  any  right  to  the  money  in  the  safe  as  against  the  owner;  for 
he  bought  the  safe  alone,  not  the  safe  and  its  contents.  See  Merry  v. 
Green,  7  M.  &  W.  623.  But  he  claims  that  as  between  himself  and 
the  defendant  his  is  the  better  right.  The  defendant,  however,  has 
the  possession,  and  therefore  it  is  for  the  plaintiff,  in  order  to  succeed 
in  his  action,  to  prove  his  better  right. 

The  plaintiff  claims  that  he  is  entitled  to  have  the  money  by  the 
right  of  prior  possession.  But  the  plaintiff  never  had  any  possession 
of  the  money,  except,  unwittingly,  by  having  possession  of  the  safe 
which  contained  it.  Such  possession,  if  possession  it  can  be  called, 
does  not  of  itself  confer  a  right.  The  case  at  bar  is  in  this  view  like 
Bridges  v.  Hawkesworth,  15  Jur.  1079;  21  L.  J.  Q.  B.  75,  a.d.  1851; 
7  Eng.  L.  &  Eq.  424.  In  that  case,  the  plaintiff,  while  in  the  defend- 
ant's shop  on  business,  picked  up  from  the  floor  a  parcel  containing 
bank  notes.  He  gave  them  to  the  defendant  for  the  owner  if  he  could 
be  found.  The  owner  could  not  be  found,  and  it  was  held  that  the 
plaintiff  as  finder  was  entitled  to  them,  as  against  the  defendant 
as  owTier  of  the  shop  in  which  they  were  found.  "The  notes,"  said 
the  court,  "never  were  in  the  custody  of  the  defendant  nor  within 
the  protection  of  his  house,  before  they  were  found,  as  they  would 
have  been  if  they  had  been  intentionally  deposited  there."  The  same 
in  effect  may  be  said  of  the  notes  in  the  case  at  bar ;  for  though  they 
were  originally  deposited  in  the  safe  by  design,  they  were  not  so  de- 
posited in  the  safe,  after  it  became  the  plaintiff's  safe,  so  as  to  be  in 
the  protection  of  the  safe  as  his  safe,  or  so  as  to  affect  him  with  any 
responsibility  for  them.  The  case  at  bar  is  also  in  this  respect  like 
Tatum  V.  Sharpless,  6  Phila.  18.  There  it  was  held,  that  a  conductor 
who  had  found  money  which  had  been  lost  in  a  railroad  car  was  en- 
titled to  it  as  against  the  railroad  company. 

The  plaintiff  also  claims  that  the  money  was  not  lost  but  de- 
signedly left  where  it  was  found,  and  that  therefore  as  owner  of  the 
safe  he  is  entitled  to  its  custody.   He  refers  to  cases  in  which  it  has 


96  DURFEE   V.   JONES.  [cHAP.  H. 

been  held,  that  money  or  other  property  voluntarily  laid  down  and 
forgotten  is  not  in  legal  contemplation  lost,  and  that  of  such  money 
or  property  the  owner  of  the  shop  or  place  where  it  is  left  is  the  proper 
custodian  rather  than  the  person  who  happens  to  discover  it  first 
State  V.  McCann,  19  Mo.  249;  Lawrence  V.  The  State,  1  Humph.  228, 
McAvoy  V.  Medina,  11  Allen,  549.  It  may  be  questioned  whether 
this  distinction  has  not  been  pushed  to  an  extreme.  See  Kincaid 
V.  Eaton,  98  Mass.  139.  But,  however  that  may  be,  we  think  the 
money  here,  though  designedly  left  in  the  safe,  was  probably  not 
designedly  put  in  the  crevice  or  interspace  where  it  was  found,  but 
that,  being  left  in  the  safe,  it  probably  slipped  or  was  accidentally 
shoved  into  the  place  where  it  was  found  without  the  knowledge  of 
the  o^\aier,  and  so  was  lost,  in  the  stricter  sense  of  the  word.  The 
money  was  not  simply  deposited  and  forgotten,  but  deposited  and 
lost  by  reason  of  a  defect  or  insecurity  in  the  place  of  deposit. 

The  plaintiff  claims  that  the  finding  was  a  wrongful  act  on  the 
part  of  the  defendant,  and  that  therefore  he  is  entitled  to  recover 
the  money  or  to  have  it  replaced.  We  do  not  so  regard  it.  The  safe 
was  left  with  the  defendant  for  sale.  As  seller  he  would  properly  ex- 
amine it  under  an  implied  permission  to  do  so,  to  qualify  him  the 
better  to  act  as  seller.  Also  under  the  permission  to  use  it  for  his 
books,  he  would  have  the  right  to  inspect  it  to  see  if  it  was  a  fit  de- 
pository. And  finally,  as  a  possible  purchaser  he  might  examine  it, 
for  though  he  had  once  declined  to  purchase,  he  might  on  closer 
examination  change  his  mind.  And  the  defendant,  having  found  in 
the  safe  something  which  did  not  belong  there,  might,  we  think, 
properly  remove  it.  He  certainly  would  not  be  expected  either  to 
sell  the  safe  to  another,  or  to  buy  it  himself  ^vathout  first  removing 
it.  It  is  not  pretended  that  he  used  any  violence  or  did  any  harm  to 
the  safe.  And  it  is  evident  that  the  idea  that  any  trespass  or  tort 
had  been  committed  did  not  even  occur  to  the  plaintiff's  agent  when 
he  was  first  informed  of  the  finding. 

The  general  rule  undoubtedly  is,  that  the  finder  of  lost  property 
is  entitled  to  it  as  against  all  the  world  except  the  real  owner,  and 
that  ordinarily  the  place  where  it  is  found  does  not  make  any  differ- 
ence. We  cannot  find  anything  in  the  circumstances  of  the  case  at 
bar  to  take  it  out  of  this  rule. 

Vie  give  the  defendant  judgment  for  costs. 

Note.  —  See  Keron  v.  Cashman,  33  Atl.  1055.  A  boy  picked  up 
an  old  stocking,  and  he  and  his  three  comrades  began  to  play  with 
it.  The  stocking  burst,  and  money  therein  was  discovered.  It  was 
held  that  the  boy  who  had  picked  up  the  stocking  was  entitled  to 
only  one  quarter  of  the  money. 


f^ECV.  ii.j  HAMAKER    V.    BLANCHARD.  97 

HAMAKER  v.  BLANCHARD. 

90  Pa.  377.     1879. 

May  27th,  1879.  Before  Sharswood,  C.J.,  Mercur,  Gordon, 
Paxson,  Woodward,  Trunkey  and  Sterrett,  JJ. 

Error  to  the  Court  of  Common  Pleas  of  Mifflin  County :  Of  May 
Term  1879,  No.  57, 

Assumpsit  by  James  Blanchard  and  Sophia,  his  \v\ie,  for  the  use 
of  the  wife,  against  W.  W.  Hamaker. 

This  was  an  appeal  from  the  judgment  of  a  justice  of  the  peace. 
The  material  facts  were  these:  Sophia  Blanchard  was  a  domestic 
servant  in  a  hotel  in  Lewistown,  of  which  the  defendant  v.'as  the 
proprietor.  While  thus  employed,  she  found  in  the  public  parlor 
of  the  hotel  three  twenty-dollar  bills.  On  finding  the  monej',  she 
went  with  it  to  IVIr.  Hamaker  and  informed  him  of  the  fact,  and 
upon  his  remarking  that  he  thought  it  belonged  to  a  whip  agent,  a 
transient  guest  of  the  hotel,  she  gave  it  to  him,  for  the  purpose  of 
returning  it  to  said  agent.  It  was  afterwards  ascertained  that  the 
money  did  not  belong  to  the  agent,  and  no  claim  was  made  for  it 
by  any  one.  Sophia  afterwards  demanded  the  money  of  defendant, 
who  refused  to  deliver  it  to  her.  Defendant  admitted  that  he  still 
had  the  custody  of  the  money. 

In  the  general  charge  the  court  (Bucher,  P.  J.,)  inter  alia,  said: 
"If  you  find  that  this  was  lost  money,  Hamaker  did  not  lose  it, 
and  that  it  never  belonged  to  him,  but  that  it  belonged  to  some  one 
else  who  has  not  appeared  to  claim  it,  then  you  ought  to  find  for 
the  plaintiff,  on  the  principle  that  the  finder  of  a  lost  chattel  is  en- 
titled to  the  possession  and  use  of  it  as  against  all  the  world  except 
the  true  owner.  .  .  .  The  counsel  for  the  defendant  asks  us  to  say 
that  as  the  defendant  was  the  proprietor  of  a  hotel  and  the  money 
was  found  therein,  the  presumption  of  law  is  that  it  belonged  to  a 
guest,  who  had  lost  it,  and  that  the  defendant  has  a  right  to  retain 
it  as  against  this  woman,  the  finder,  to  await  the  demand  of  the 
true  owner.  I  decline  to  give  you  such  instructions;  but  charge  you 
that  under  the  circumstances  there  is  no  presumption  of  law  that 
this  money  was  lost  by  a  guest  at  the  hotel,  or  that  the  defendant 
is  entitled  to  keep  it  as  against  this  woman  for  the  true  owner." 

The  verdict  was  for  the  plaintiffs  for  $60,  with  interest,  and  after 
judgment  thereon,  defendant  took  this  writ  and  assigned  for  error 
the  foregoing  portions  of  the  charge. 

INIr.  Justice  Trunkey  delivered  the  opinion  of  the  court,  June 
9th,  1879. 

It  seems  to  be  settled  law  that  the  finder  of  lost  property  has  a 
valid  claim  to  the  same  against  all  the  world,  except  the  true  o^\'ner, 
and  generally  that  the  place  in  which  it  is  found  creates  no  exception 


98  HAMAKER    V.    BLANCHARD.  [CHAP.  T^. 

to  this  Tule.  But  property  is  not  lost,  in  the  sense  of  the  rule,  if 
it  was  intentionally  laid  on  a  table,  counter  or  other  place,  by  the 
owner,  who  forgot  to  take  it  away,  and  in  such  case  the  proprietor 
of  the  premises  is  entitled  to  retain  the  custody.  Whenever  the  sur- 
roundings evidence  that  the  article  was  deposited  in  its  place,  the 
finder  has  no  right  of  possession  against  the  owner  of  the  building: 
McAvoy  V.  Medina,  11  Allen  (Mass.),  548.  An  article  casually 
dropped  is  within  the  rule.  Where  one  went  into  a  shop,  and  as  he 
was  leaving  picked  up  a  parcel  of  bank  notes,  which  was  lying  on 
the  floor,  and  immediately  showed  them  to  the  shopman,  it  was 
held  that  the  facts  did  not  warrant  the  supposition  that  the  notes 
had  been  deposited  there  intentionally,  they  being  manifestly  lost 
by  some  one,  and  there  was  no  circumstance  in  the  case  to  take  it 
out  of  the  general  rule  of  law,  that  the  finder  of  a  lost  article  is 
entitled  to  it  as  against  all  persons,  except  the  real  o'WTier:  Bridges 
V.  Haivkesworth,  7  Eng.  Law  &  Eq.  R.  424. 

The  decision  in  Mathews  v.  Harsell,  1  E.  D.  Smith  (N.Y.),  393, 
is  not  in  conflict  with  the  principle,  nor  is  it  an  exception.  ]\Irs. 
Mathews,  a  domestic  in  the  house  of  IVIrs.  Barmore,  found  some 
Texas  notes,  which  she  handed  to  her  mistress,  to  keep  for  her. 
Mrs.  Barmore  afterwards  intrusted  the  notes  to  Harsell,  for  the 
purpose  of  ascertaining  their  value,  informing  him  that  she  was 
acting  for  her  servant,  for  whom  she  held  the  notes.  Harsell  sold 
them,  and  appropriated  the  proceeds;  whereupon  Mrs.  Mathews 
sued  him  and  recovered  their  value,  with  interest  from  date  of  sale. 
Such  is  that  case.  True,  Wood  ruff,  J.,  says:  "I  am  by  no  means 
prepared  to  hold  that  a  house-servant  who  finds  lost  jewels,  money 
or  chattels,  in  the  house  of  his  or  her  employer,  acquires  any  title 
even  to  retain  possession  against  the  will  of  the  employer.  It  will 
tend  much  more  to  promote  honesty  and  justice  to  require  servants 
in  such  cases  to  deliver  the  property  so  found  to  the  employer,  for 
the  benefit  of  the  true  owner."  To  that  remark,  foreign  to  the 
case  as  understood  by  himself,  he  added  the  antidote:  "And  yet 
the  Court  of  Queen's  Bench  in  England  have  recently  decided  that 
the  place  in  which  a  lost  article  is  found,  does  not  form  the  ground 
of  any  exception  to  the  general  rule  of  law,  that  the  finder  is  en- 
titled to  it  against  all  persons  except  the  o\\'ner."  His  views  of  what 
will  promote  honesty  and  justice  are  entitled  to  respect,  yet  many 
may  think  Mrs.  Barmore's  method  of  treating  servants  far  superior. 

The  assigmnents  of  error  are  to  so  much  of  the  charge  as  in- 
structed the  jury  that,  if  they  found  the  money  in  question  was 
lost,  the  defendant  had  no  right  to  retain  it  because  found  in  his 
hotel,  the  circumstances  raising  no  presumption  that  it  was  lost  by 
a  guest,  and  their  verdict  ought  to  be  for  the  plaintiff.  That  the 
money  was  not  voluntarily  placed  where  it  was  found,  but  acci- 
dentally lost,  is  settled  by  the  verdict.    It  is  admitted  that  it  was 


OECT.  II.]  WEEKS    V.    HACKETT,  99 

found  in  the  parlor,  a  public  place  open  to  all.  There  is  nothing 
to  indicate  whether  it  was  lost  by  a  guest,  or  a  boarder,  or  one 
who  had  called  with  or  without  business.  The  pretence  that  it 
was  the  property  of  a  guest,  to  whom  the  defendant  would  be  liable, 
is  not  founded  on  an  act  or  circumstance  in  evidence. 

Many  authorities  were  cited,  in  argument,  touching  the  rights, 
duties  and  responsibilities  of  an  innkeeper  in  relation  to  his  guests; 
these  are  so  well  settled  as  to  be  uncontro verted.  In  respect  to 
other  persons  than  guests,  an  innkeeper  is  as  another  man.  When 
money  is  found  in  his  house,  on  the  floor  of  a  room  common  to  all 
classes  of  persons,  no  presumption  of  ownership  arises;  the  case 
is  like  the  finding  upon  the  floor  of  a  shop.  The  research  of  coun- 
sel failed  to  discover  authority  that  an  innkeeper  shall  have  an 
article  which  another  finds  in  a  public  room  of  his  house,  where 
there  is  no  circumstance  pointing  to  its  loss  by  a  guest.  In  such 
case  the  general  rule  should  prevail.  If  the  finder  be  an  honest 
woman,  who  immediately  informs  her  employer,  and  gives  him  the 
article  on  his  false  pretence  that  he  knows  the  owner  and  will  re- 
store it,  she  is  entitled  to  have  it  back  and  hold  it  till  the  owner 
comes.  A  rule  of  law  ought  to  apply  to  all  alike.  Persons  employed 
in  inns  will  be  encouraged  to  jfidelity  by  protecting  them  in  equality 
of  rights  with  others.  The  learned  judge  was  right  in  his  instruc- 
tions to  the  jury. 

Judgment  affirmed. 

Mercur,  J.,  dissents. 


WEEKS  V.  HACKETT. 

104  Me.  264.     1908. 

On  exceptions  and  motions  by  defendant.  Overruled. 

Actions  of  trover,  one  by  each  plaintiff,  brought  to  recover  one 
third  in  value  of  a  certain  quantity  of  coins  of  the  United  States 
and  of  certain  foreign  coins,  alleged  to  have  been  found  by  each 
plaintiff  jointly  with  the  other  plaintiff  and  with  the  defendant  in 
three  metallic  cans  buried  and  concealed  in  the  soil  and  underneath 
the  surface  of  land  owned  by  one  Leonard  J.  Hackett  in  the  town 
of  New  Vineyard.  ^ 

Plea  in  each  case,  the  general  issue  with  the  following  brief  state- 
ment in  each  case: 

"1.  Defendant  claims  and  says  he  is  the  owner  of  the  property 
sued  for,  and  that  he  found  it  under  such  circumstances  as  makes 
him  the  owner  of  the  same  as  against  the  plaintiff. 

"2.  That  if  the  plaintiff  found  any  part  of  the  same,  which  the 
defendant  denies,  then  he  is  a  joint  owner,  or  co-tenant  with  the 


100  WEEKS    V.    HACKETT.  [CKAP.  II. 

plaintiff;  and  that  defendant  holds  the  money  in  trust  for  the  real 
owner  or  party  that  deposited  the  same  in  the  gromid. 

"3.  Defendant  claims  by  purchase  of  one  Leonard  J.  Hackett, 
who  was  the  owner  of  the  land  where  the  money  was  found,  all  the 
right,  title  and  interest  of  the  said  Leonard  J.  Hackett,  in  and  to 
the  property  sued  for." 

Tried  together  at  the  September  term,  1907,  Supreme  Judicial 
Court,  Franklin  County.  Each  plaintiff  recovered  a  verdict  for 
§29L20.  The  defendant  excepted  to  certain  rulings  made  by  the 
presiding  Justice  during  the  trial  and  also  filed  general  motions  to 
have  the  verdicts  set  aside. 

All  the  material  facts  are  stated  in  the  opinion. 

Sitting:  Emery,  C.  J.,  Whitehouse,  Peabody,  Spear,  Cornish, 
King,  JJ. 

Whitehouse,  J.  These  were  actions  of  trover  brought  by  each 
of  these  plaintiffs  to  recover  one  third  in  value  of  a  certain  quantity 
of  coins  of  the  United  States  and  of  certain  foreign  coins,  alleged 
to  have  been  found  by  each  plaintiff  jointly  with  the  other  and  with 
the  defendant  Fessenden  E.  Hackett.  It  is  not  in  controversj-  that 
*,he  coins  in  question  of  the  aggregate  par  value  of  SI, 284.67  were 
.bund  contained  in  three  metallic  cans  buried  and  concealed  in  the 
doil  and  underneath  the  surface  of  land  owTied  by  one  Leonard  J. 
Hackett  in  the  town  of  New  Vineyard;  and  it  appears  in  evi- 
dence that  after  the  coins  were  found  and  prior  to  the  commence- 
ment of  these  actions,  the  defendant  Fessenden  E.'  Hackett  pur- 
chased all  the  right,  title  and  interest,  if  any,  which  Leonard  J. 
Hackett  had  in  and  to  these  coins  as  ov,Tier  of  the  land  where  they 
were  found. 

Three  contentions  were  set  up  in  defense. 

1.  That  the  defendant  found  the  coins  under  circumstances  which 
made  him  the  sole  owner  of  them  as  against  these  plaintiffs. 

2.  That  if  the  plaintiffs  participated  in  the  finding,  they  are 
joint  tenants  or  tenants  in  common  with  the  defendant,  that  he  is 
entitled  to  hold  the  coins  in  trust  for  the  true  owner,  and  that  the 
plaintiffs  as  tenants  in  common  cannot  maintain  trover  against  him 
for  their  respective  shares. 

3.  That  the  defendant  became  the  sole  owTier  of  the  coins  by 
purchase  from  Leonard  J.  Hackett,  the  owner  of  the  premises 
v/here  thej'"  were  found. 

The  presiding  Justice  did  not  sustain  the  legal  propositions  in- 
volved in  these  contentions  of  the  defendant,  but  instructed  the 
jury  in  substance  that  gold  or  silver  coin  deposited  in  the  soil  as  this 
appeared  to  have  been,  beca,me  what  is  knowTi  in  law  as  treasure- 
trove  the  title  to  which  does  not  pass  with  the  soil,  and  that  the 
owner  of  the  premises  where  the  coin  was  found  acquired  no  title 
to  it  by  virtue  of  his  ownership  of  the  land,  and  that  the  defendant 


SECT.  II.]  WEEKS    V.    HACKETT.  101 

consequently  acquired  no  title  by  purchase  from  Leonard  J.  Hackelt; 
that  if  the  coin  was  purposely  buried  in  the  soil  and  forgotten  or  ite 
place  of  concealment  remained  undisclosed  by  reason  of  the  death 
of  the  depositor,  the  finder  acquired  a  right  to  the  possession  of  it 
and  a  qualified  property  in  it,  subject  to  the  right  of  the  true  owTier 
when  he  appeared  and  in  that  sense  became  a  trustee  for  the  o\\Tier ; 
but  if  several  participated  in  the  finding  so  as  to  become  joint  finders 
with  equal  rights,  the  owniership  pertained  to  all  of  them,  and  one 
of  them  was  not  authorized  to  hold  exclusive  possession  as  against 
his  fellows;  and  finally,  that  since  the  coins  were  separable  and  di- 
visible by  weight  or  count,  if  the  defendant  refused  to  deliver  to 
each  of  such  tenants  in  common  the  share  to  which  he  was  entitled, 
an  action  of  trover  would  lie  against  the  defendant  for  the  conversion 
of  such  number  or  portion  of  the  coins  as  rightfully  belonged  to  each 
of  the  joint  finders. 

The  jury  returned  a  verdict  in  favor  of  each  plaintiff  for  the  sum 
of  S291.20,  being  one  third  of  the  aggregate  market  value  of  the 
coins,  and  the  cases  come  to  the  Law  Court  on  exceptions  to  these 
instructions  and  on  a  motion  to  set  aside  the  verdicts  as  against  the 
law  and  the  evidence. 

1.  It  is  the  opinion  of  the  court  that  the  instructions  given  by  the 
presiding  Justice  were  correct  and  that  the  exceptions  must  be 
overruled. 

Treasure-trove  is  a  name  given  by  the  early  common  law  to  any 
gold  or  silver  in  coin,  plate  or  bullion  found  concealed  in  the  earth, 
or  in  a  house  or  other  private  place,  but  not  lying  on  the  ground, 
the  owner  of  the  discovered  treasure  being  unkno'\\Ti.  1  Black, 
295.  Cyc.  vol.  19,  page  339;  A.  &  E.  of  Law,  vol.  28,  page  472; 
Livermore  v.  White,  74  Maine,  452;  Sovern  v.  Yoran,  16  Or.  269,  8 
Am.  St.  Rep.  293.  To  what  extent  the  doctrine  of  the  English  com- 
mon law  in  regard  to  treasure-trove  has  been  merged,  in  this  coun- 
try, into  the  law  respecting  the  finding  of  lost  property,  and  whether 
in  modern  commercial  life  the  term  treasure-trove  may  be  held  to 
include  not  only  gold  and  silver,  but  the  paper  representatives  of 
them,  are  questions  not  necessary  to  be  considered  here  (see  Huth- 
macker  v.  Harris,  38  Pa.  St.  499  and  Danielson  v.  Roberts  et  al.,  44 
Oreg.  108, 74  Pac.  913) ;  for  while  it  is  not  in  controversy  that  the  coins 
here  in  question  clearly  fall  within  the  common  law  definition  of  treas- 
ure-trove, the  general  rule  is  established  by  a  substantially  uniform 
line  of  decisions  in  the  American  States,  with  respect  to  both  lost 
goods,  properly  so  termed,  and  treasure-trove,  that  in  the  absence  of 
legislation  upon  the  subject,  the  title  to  such  property  belongs  to  the 
finder  as  against  all  the  world  except  the  true  owner  and  that  ordi- 
narily the  place  where  it  is  found  is  immaterial.  Lawrence  v.  Buck, 
62  Maine,  275;  Durfee  v.  Jones,  11  R.L  588;  Hamaker  v.  Blanchard, 
90  Pa.  St.  377;  Bowen  v.  Sullivan,  62  Ind.  281  (30  Am.  Rep.  172); 


102  WEEKS    V.    HACKETT.  [CHAP.  II, 

Danielsonv.  Roberts,  44  Or,  108  (74  Pac.  913) ;  Armory  v,  Delamirie, 
1  Strange,  504  (1  Smith's  Lead,  Cases,  631) ;  Bridges  v.  Hawkesworth, 
7  Eng.  Law  &  Eq,  424;  21  L.  J.  Q.  B.  75,  The  owner  of  the  soil  in 
which  treasure-trove  is  found  acquires  no  title  thereto  by  virtue  of 
his  ownership  of  the  land.  Reg.  v,  Thomas,  Leigh  &  Cave  Eng,  Cr, 
cases;  28  A.  &  E,  Enc.  of  Law  (2d,  Ed.),  473.  According  to  Bracton, 
lib.  3,  cap.  3,  as  quoted  in  Viner's  Abridgment,  "he  to  whom  the 
property  is  shall  have  treasure-trove,  and  if  he  dies  before  it  be  found, 
his  executors  shall  have  it,  for  nothing  accrues  to  the  King  unless 
when  no  one  knows  who  hid  that  treasure";  and  according  to  Lord 
Coke  (3  List.  132),  the  common  law  originally  left  treasure-trove 
to  the  person  who  deposited  it,  or  upon  his  omission  to  claim  it,  to 
the  finder.  2  Kent's  Com,  458,  The  rule  of  the  common  law  re- 
specting the  rights  and  duties  of  the  finder  of  lost  money  or  goods 
has  been  variously  modified  by  the  terms  and  provisions  of  local 
statutes  of  man}^  States,  but  the  provisions  of  the  Maine  Statutes 
(R,  S.,  ch.  100,  sect.  10,  et  seq.)  have  no  reference  to  the  law  of 
treasure-trove. 

In  Danielson  et  al.  v.  Roberts  et  ah,  44  Or.,  supra,  in  which  the 
facts  were  strikingly  analogous  to  those  at  bar,  two  boys  unearthed 
on  the  defendant's  premises  an  old  tin  can  containing  gold  coin  of 
the  value  of  $7000.  The  circumstances  under  which  the  money 
was  discovered,  the  rust-eaten  condition  of  the  can  in  which  it  was 
contained,  and  the  place  of  deposit,  tended  strongly  to  show  that  it 
had  been  buried  for  a  long  time,  and  that  the  o-wmer  was  probably 
dead  or  unknown.  It  was  held  that  the  fact  the  money  was  found 
on  the  premises  of  the  defendants  in  no  way  affected  the  plaintiffs' 
right  to  possession  or  their  duty  in  relation  to  the  treasure,  and 
that  they  could  maintain  trover  therefor  against  the  defendants  to 
whom  they  had  been  induced  to  deliver  the  money.  In  a  well- 
reasoned  opinion,  the  court  say:  "Ever  since  the  early  case  of 
Armory  v.  Delamirie,  1  Strange,  504,  where  it  was  held  that  the 
finder  of  a  jewel  might  maintain  trover  for  the  conversion  thereof 
by  a  wrongdoer,  the  right  of  the  finder  of  lost  property  to  retain  it 
against  all  persons  except  the  true  OTVTier  has  been  recognized.  In 
that  case  a  chimney  sweeper's  boy  found  a  jewel,  and  carried  it  to  a 
goldsmith  to  ascertain  what  it  was.  The  goldsmith  refused  to  re- 
turn it,  and  it  was  held  that  the  boy  might  maintain  trover  on.  the 
ground  that  by  the  finding  he  had  acquired  such  a  property  in  the 
jewel  as  would  entitle  him  to  keep  it  against  all  persons  but  the 
rightful  owner.  This  case  has  been  uniformly  followed  in  England 
and  America,  and  the  law  upon  this  point  is  well  settled.  Sovern 
V.  Yoran,  16  Or.  269,  20  Pac.  100,  8  Am.  St.  Rep,  293;  19  Am.  & 
Eng.  Ency.  Law  (2d  Ed.),  579.  But  it  is  argued  that  property  is 
lost  in  the  legal  sense  of  that  word  only  when  the  possession  has 
been  casually  and  involuntarily  parted  with,  and  not  when  the  owner 


SECT.  II.]  WEEKS    V.    HACKETT.  103 

purposely  and  voluntarily  places  or  deposits  it  in  a  certain  place 
for  safe-keeping,  although  he  may  thereafter  forget  it,  and  leave  it 
where  deposited,  or  may  die  without  disclosing  to  any  one  the  place 
of  deposit. 

"But  at  the  present  stage  of  the  controversy  it  is  immaterial 
whether  the  money  discovered  by  plaintiffs  was  technically  lost 
property  or  treasure-trove,  or,  if  treasure-trove,  whether  it  belongs 
to  the  State  or  the  finder,  or  should  be  disposed  of  as  lost  property 
if  no  o^Tier  is  discovered.  In  either  event  the  plaintiffs  are  entitled 
to  the  possession  of  the  money  as  against  the  defendants,  unless  the 
latter  can  show  a  better  title.  The  reason  of  the  rule  giving  the 
finder  of  lost  property  the  right  to  retain  it  against  all  persons  ex- 
cept the  true  ownaer  applies  wdth  equal  force  and  reason  to  money 
found  hidden  or  secreted  in  the  earth  as  to  property  found  on  the 
surface." 

In  Durfee  v.  Jones,  11  R.I.  588,  the  plaintiff  bought  an  old  safe 
and  soon  afterwards,  through  his  agent,  left  it  for  sale  with  the  de- 
fendant, who  was  a  blacksmith.  Upon  examination  of  it  soon  after 
it  was  left  with  him,  the  defendant  found  secreted  between  the 
exterior  and  the  lining  a  roll  of  bank  bills  amountingto  S165.  Neither 
the  plaintiff  nor  the  defendant  knew  the  money  was  there  before  it 
was  found,  and  the  owmer  was  unknown.  The  plaintiff  brought 
suit  against  the  defendant  to  recover  the  monej^,  claiming  that  as 
owner  of  the  safe  he  was  entitled  to  the  money  by  right  of  prior 
possession.  But  the  court  held  that  the  plaintiff  "never  had  any 
possession  of  the  money  except  unwittingly,  by  having  possession 
of  the  safe  which  contained  it;  that  although  it  was  originally  de- 
posited in  the  safe  by  design,  it  was  not  so  deposited  after  the  safe 
became  the  property  of  the  plaintiff  so  as  to  be  in  the  protection  of 
the  safe  as  his  safe,  or  so  as  to  affect  him  with  any  responsibility 
for  it,"  and  it  was  accordingly  held  that  the  plaintiff  as  finder  of  the 
money  was  entitled  to  retain  it  as  against  the  defendant,  the  owTier 
of  the  safe,  and  as  against  all  the  world  except  the  real  o^^^ler. 

In  Bowen  v.  Sullivan,  62  Ind.,  supra,  the  plaintiff  while  engaged 
as  an  employee  in  the  defendant's  paper  mill  found  two  fifty  dollar 
bank  bills,  in  a  clean  unmarked  envelope,  in  a  bale  of  old  paper  which 
the  defendant  had  bought  for  manufacture,  and  delivered  the  bills 
to  the  defendant  for  the  purpose  of  ascertaining  if  they  were  good 
and  upon  his  promise  to  return  them.  The  defendant  refusing  to 
return  them,  the  plaintiff  brought  suit  to  recover  their  value,  and 
the  court  held  that  she  was  entitled  to  recover,  citing  among  other 
cases,  Lawrence  v.  Buck,  62  Maine,  275;  Durfee  v.  Jones,  11  R.I. 
588,  and  Armory  v.  Delamirie,  1  Strange,  505,  supra,  and  stating 
that  the  place  of  the  finding  was  ordinarily  immaterial. 

The  result  therefore  seems  unquestionable  that  in  the  case  at  bar, 
the  coins  sued  for  belonged  to  the  finder  or  finders  a^  against  all 


£04  McAVOY    V.    MEDINA.  [CHAP.  II. 

the  world  except  the  true  owner,  or  his  legal  representatives,  when 
discovered.  ,  .  . 

Exceptions  and  motions  overruled. 

roTE,  —  Cf.  Ferguson  v.  Ray,  44  Oreg.  557,  in  which  valuable 
shattels,  buried  in  the  ground,  were  held  to  belong  to  the  owner  of  the 
soil,  rather  than  the  finder. 


^  McAVOY  V.   MEDINA. 

11  AUen  (Mass.),  548.     1866. 

Tort  to  recover  a  sum  of  money  found  by  the  plaintiff  in  the 
shop  of  the  defendant. 

At  the  trial  in  the  superior  court,  before  Morton,  J.,  it  appeared 
that  the  defendant  was  a  barber,  and  the  plaintiff,  being  a  cus- 
tomer in  the  defendant's  shop,  saw  and  took  up  a  pocket-book 
r^hich  was  lying  upon  a  table  there,  and  said,  "See  what  I  have 
found."  The  defendant  came  to  the  table  and  asked  where  he  found 
it.  The  plaintiff  laid  it  back  in  the  same  place  and  said,  "I  found 
it  right  there."  The  defendant  then  took  it  and  counted  the  monej^ 
and  the  plaintiff  told  him  to  keep  it,  and  if  the  owTier  shoald  come 
to  give  it  to  him ;  and  otherwise  to  advertise  it ;  which  the  defendant 
promised  to  do.  Subsequently  the  plaintiff  made  three  demands  for 
the  money,  and  the  defendant  never  claimed  to  hold  the  same  till  the 
last  demand.  It  was  agreed  that  the  pocket-book  was  placed  upon 
the  table  by  a  transient  customer  of  the  defendant  and  accidentally 
left  there,  and  was  first  seen  and  taken  up  by  the  plaintiff,  and  that 
the  owTier  had  not  been  found. 

The  judge  ruled  that  the  plaintiff  could  not  maintain  his  action, 
and  a  verdict  was  accordingly  returned  for  the  defendant;  and  the 
plaintiff  alleged  exceptions. 

Dev/ey,  J.  It  seems  to  be  the  settled  law  that  the  finder  of  lost 
property  has  a  valid  claim  to  the  same  against  all  the  world  except 
the  true  owner,  and  generally  that  the  place  in  which  it  is  found 
creates  no  exception  to  this  rule.  2  Parsons  on  Con.  97.  Bridges  v. 
Hawkesworth,  7  Eng.  Law  &  Eq.  R.  424. 

But  this  property  is  not,  under  the  circimistances,  to  be  treated 
as  lost  property  in  that  sense  in  which  a  finder  has  a  valid  claim  to 
hold  the  same  until  called  for  by  the  true  owner.  This  property  was 
voluntarily  placed  upon  a  table  in  the  defendant's  shop  bj^  a  customer 
of  his  who  accidentally  left  the  same  there  and  has  never  called  for 
it.  The  plaintiff  also  came  there  as  a  customer,  and  first  saw  the 
same  and  took  it  up  from  the  table.  The  plaintiff  did  not  by  this 
acquire  the  right  to  take  the  property  from  the  shop,  but  it  was 


SECT.  II.j  McAVOY    V.    MEDINA.  lOo 

rather  the  duty  of  the  defendant,  when  the  fact  became  thus  known 
to  him,  to  use  reasonable  care  for  the  safe-keeping  of  the  same  until 
the  o\\'ner  should  call  for  it.  In  the  case  of  Bridges  v.  Hawkesworth 
the  propert}',  although  found  in  a  shop,  was  found  on  the  floor  of  the 
same,  and  had  not  been  placed  there  voluntarily  by  the  owner,  and 
the  court  held  that  the  finder  was  entitled  to  the  possession  of  the 
same,  except  as  to  the  o'WTier.  But  the  present  case  more  resembles 
that  of  Lawrence  v.  The  State,  1  Humph.  (Tenn.)  228,  and  is  indeed 
very  similar  in  its  facts.  The  court  there  take  a  distinction  be- 
tween the  case  of  property  thus  ^^laced  by  the  owner  and  neglected 
to  be  removed,  and  property  lost.  It  was  there  held  that  "to  place  a 
pocket-book  upon  a  table  and  to  forget  to  take  it  away  is  not  to  lose 
it,  in  the  sense  in  which  the  authorities  referred  to  speak  of  lost 
property." 

We  accept  this  as  the  better  rule,  and  especially  as  one  better 
adapted  to  secure  the  rights  of  the  true  owner. 

In  view  of  the  facts  of  this  case,  the  plaintiff  acquired  no  original 
right  to  the  property,  and  the  defendant's  subsequent  acts  in  re- 
ceiving and  holding  the  property  in  the  manner  he  did  does  not 
create  any. 

Exceptions  overruled. 

Note.  —  See,  accord,  Kincaid  v.  Eaton,  98  Mass.  139;  Hoagland 
V.  Amusement  Co.,  170  Mo.  335,  342. 


106  TAPSCOTT    V.    COBBS.  [CHAP.  H. 


SECTION  3. 
RIGHTS  OF  A  MERE  POSSESSOR. 


TAPSCOTT  V.   COBBS. 

11  Gratt.  (Va.Tl72.     1854. 

This  was  an  action  of  ejectment  in  the  circuit  court  of  Bucking- 
ham County,  brought  in  February,  1846,  by  the  lessee  of  EUzabeth 
A.  Cobbs  and  others  against  WilHam  H.  Tapscott.  Upon  the  trial 
the  defendant  demurred  to  the  evidence.  It  appears  that  Thomas 
Anderson  died  in  1800,  having  made  a  will,  by  which  he  appointed 
several  persons  his  executors,  of  whom  John  Harris,  Robert  Rives 
and  Nathaniel  Anderson  qualified  as  such.  By  his  will  his  executors 
were  authorized  to  sell  his  real  estate. 

At  the  time  of  Thomas  Anderson's  death  the  land  in  controversy 
had  been  surveyed  for  him,  and  in  1802  a  patent  was  issued  there- 
for to  Harris,  Rives  and  N.  Anderson  as  executors.  Some  time  be- 
tween the  years  1820  and  1825,  the  executors  sold  the  land  at  public 
auction,  when  it  was  knocked  off  to  Robert  Rives;  though  it  appears 
from  a  contract  between  Rives  and  Sarah  Lewis,  dated  in  September, 
1825,  that  the  land  had,  prior  to  that  date,  been  sold  by  the  execu- 
tors to  Mrs.  Lewis  for  three  hundred  and  sixty-seven  dollars  and 
fifty  cents.  This  contract  was  for  the  sale  by  Mrs.  Lewis  to  Rives 
of  her  dower  interest  in  another  tract  of  land,  for  which  Rives  was 
to  pay  to  the  executors  of  Thomas  Anderson  the  sum  of  two  hundred 
and  seventeen  dollars  and  fifty  cents  in  part  of  her  purchase.  In  a 
short  time  after  her  purchase  she  moved  upon  the  land,  built  upon 
and  improved  it,  and  continued  in  possession  until  1835,  when  she 
died.  In  1825  the  executor  Harris  was  dead,  and  Nathaniel  Ander- 
son died  in  1831,  leaving  Rives  surviving  him.  And  it  appears  that 
in  an  account  settled  by  a  commissioner  in  a  suit  by  the  devisees  and 
legatees  of  Thomas  Anderson  against  the  executors  of  Robert  Rives, 
there  was  an  item  under  date  of  the  28th  of  August,  1826,  charging 
Rives  with  the  whole  amount  of  the  purchase  money,  in  which  it  is 
said,  "The  whole  not  yet  collected,  but  Robert  Rives  assumes  the 
liability." 

There  is  no  evidence  that  the  heirs  of  Mrs.  Lewis  were  in  posses- 
sion of  the  land  after  her  death,  except  as  it  may  be  inferred  from  the 
fact  that  she  had  been  living  upon  the  land  from  the  time  of  her 
purchase  until  her  death,  and  that  she  died  upon  it. 

The  proof  was  that  Cobbs  took  possession  of  the  land  about  the 


SECT.  III.]  TAPSCOTT    V.    COBBS,  107 

year  1842,  without,  so  far  as  appears,  any  pretense  of  title.  He  made 
an  entry  with  the  surveyor  of  the  county  in  December,  1844,  with  a 
view  to  obtain  a  patent  for  it. 

The  court  gave  a  judgment  upon  the  demurrer  for  the  plaintiffs, 
and  Tapscott  thereupon  applied  to  this  court  for  a  supersedeas, 
which  was  allowed. 

Daniel,  J.  It  is  no  doubt  true,  as  a  general  rule,  that  the  right  of 
a  plaintiff  in  ejectment  to  recover,  rests  on  the  strength  of  his  own 
title,  and  is  not  established  by  the  exhibition  of  defects  in  the  title 
of  the  defendant,  and  that  the  defendant  may  maintain  his  defense 
by  simply  showing  that  the  title  is  not  in  the  plaintiff,  but  in  some 
one  else.  And  the  rule  is  usually  thus  broadly  stated  by  the  authori- 
ties, without  qualification.  There  are,  however,  exceptions  to  the  rule 
as  thus  announced,  as  well  established  as  the  rule  itself.  As  when 
the  defendant  has  entered  under  the  title  of  the  plaintiff  he  cannot 
set  up  a  title  in  a  third  person  in  contradiction  to  that  under  which 
he  entered.  Other  instances  might  be  cited  in  which  it  is  equally  as 
well  settled  that  the  defendant  would  be  estopped  from  sho"wdng  de- 
fects in  the  title  of  the  plaintiff.  In  such  cases  the  plaintiff  may, 
and  often  does  recover,  not  by  the  exhibition  of  a  title  good  in  itself, 
but  by  showing  that  the  relations  between  himself  and  the  defendant 
are  such  that  the  latter  cannot  question  it.  The  relation  between  the 
parties  stands  in  the  place  of  title ;  and  though  the  title  of  the  plaintiff 
is  tainted  with  vices  or  defects  that  would  prove  fatal  to  his  recovery 
in  a  controversy  with  any  other  defendant  in  peaceable  possession, 
it  is  yet  all  sufficient  in  a  litigation  with  one  who  entered  into  the 
possession  under  it,  or  otherwise  stands  so  related  to  it  that  the  law 
will  not  allow  him  to  plead  its  defects  in  his  defense. 

Whether  the  case  of  an  intrusion  by  a  stranger  without  title,  on  a 
peaceable  possession,  is  not  one  to  meet  the  exigencies  of  which  the 
courts  will  recognize  a  still  further  qualification  or  explanation  of 
the  rule  requiring  the  plaintiff  to  recover  only  on  the  strength  of  hia 
own  title,  is  a  question  which,  I  believe,  has  not  as  yet  been  decided 
by  this  court.  And  it  is  somewhat  remarkable  that  there  are  but  few 
cases  to  be  found  in  the  English  reporters  in  which  the  precise  ques- 
tion has  been  decided  or  considered  by  the  courts. 

The  cases  of  Read  &  Morpeth  v.  Erington,  Croke  Eliz.  321 ;  Bate- 
man  V.  Allen,  Ibid.  437;  and  Allen  v.  Rivington,  2  Saund.  R.  Ill, 
were  each  decided  on  special  verdicts,  in  which  the  facts  with  respect 
to  the  title  were  stated.  In  each  case  it  was  shown  that  the  plaintiflf 
was  in  possession,  and  that  the  defendant  entered  without  title 
or  authority;  and  the  court  held  that  it  was  not  necessary  to  decide 
upon  the  title  of  the  plaintiff,  and  gave  judgment  for  him.  In  the 
report  of  Bateman  v.  Allen,  it  is  said  that  Williams,  Sergeant,  moved, 
"that  forasmuch  as  in  all  the  verdict  it  is  not  found  that  the  defend- 
ant had  the  primer  possession,  nor  that  he  entered  in  the  right  or  by 


108  TAPSCOTT    V.    COBBS.  [CHAP.  11^ 

the  command  of  any  who  had  title,  but  that  he  entered  on  the  pos- 
session of  the  plaintiff  without  title,  his  entry  is  not  lawful";  and  so 
the  court  held. 

And  in  Read  cfc  Morpeth  v.  Erington,  it  was  insisted  that  for  a 
portion  of  the  premises  the  judgment  ought  to  be  for  the  defend- 
ant, inasmuch  as  it  appeared  from  the  verdict  that  the  title  to  such 
portion  was  outstanding  in  a  third  party;  but  the  court  said  it  did 
not  matter,  as  it  was  shown  that  the  plaintiff  had  entered,  and  the 
defendant  had  entered  on  him. 

I  have  seen  no  case  overruling  these  decisions.  It  is  true  that  in 
Haldane  v.  Harvey,  4  Burr.  R.  2484,  the  general  doctrine  is  an- 
nounced that  the  plaintiff  must  recover  on  the  strength  of  his  own 
title;  and  that  the  "possession  gives  the  defendant  a  right  against 
every  man  who  cannot  show  a  good  title."  But  in  that  case  the  cir- 
cumstances under  which  the  defendant  entered,  and  the  nature  of  the 
claim  by  which  he  held,  do  not  appear;  and  the  case,  therefore,  can- 
not properly  be  regarded  as  declaring  more  than  the  general  rule. 

The  same  remark  will  apply  to  other  cases  that  might  be  cited, 
in  which  the  general  rule  is  propounded  in  terms  equally  broad  and 
comprehensive. 

In  2  T.  R.  749,  we  have  nothing  more  than  the  syllabus  of  the  case 
of  Crisp  V.  Barber,  in  which  it  is  said  that  a  lease  of  a  rectory-house, 
etc.,  by  a  rector  becomes  void  by  13th  Eliz.  ch.  20,  by  his  non-resi- 
dence for  eighty  days,  and  that  a  stranger  may  take  advantage  of  it. 
And  that  the  lessee  cannot  maintain  ejectment  against  a  stranger 
who  enters  without  any  title  whatever. 

And  in  Graham  v.  Peat,  1  East's  R.  244,  in  which,  upon  a  like  state 
of  facts,  arising  under  the  same  statute,  the  plaintiff  brought  trespass 
instead  of  ejectment,  it  was  held  that  his  possession  was  sufficient 
to  maintain  trespass  against  a  WTong-doer,  the  chief  justice.  Lord 
Kenyon,  remarking,  that  "if  ejectment  could  not  have  been  main- 
tained, it  was  because  that  is  a  fictitious  remedy  founded  upon  title." 

These  two  cases  as  reported  may,  perhaps,  when  taken  in  connec- 
tion, be  fairly  regarded  as  holding  that  mere  possession  by  the  plain- 
tiff will  justify  the  action  of  trespass  against  an  intruder,  but  is  not 
sufficient  to  maintain  ejectment.  If  so,  they  are  in  conflict  with  the 
earlier  decisions  before  cited.  It  is  to  be  observed,  however,  of  the 
first  of  these  cases,  that  we  have  no  statement  of  the  grounds  on 
which  it  was  decided;  and  of  the  last,  that  it  does  not  directl}^  pre- 
sent the  question  whether  ejectment  could  or  could  not  have  been 
maintained.  And  I  do  not  think  it  would  be  just  to  allow  them  to 
outweigh  decisions  in  which  the  precise  question  was  fairly  presented, 
met  and  adjudicated:  the  more  especially,  as  the  doctrine  of  the  ear- 
lier cases  is  reasserted  by  Lord  Tenterden  in  the  case  of  Hughes  v. 
Dyball,  14  Eng.  C.  L.  R.  481.  In  that  case,  proof  that  the  plaintiff 
iet  the  locus  in  quo  to  a  tenant  who  held  peaceable  possession  for 


SECT.  III.]  TAPSCOTT    V.    COBBS.  109 

about  a  year,  was  held  sufficient  evidence  of  title  to  maintain  eject- 
ment against  a  party  who  came  in  the  night  and  forcibly  turned  the 
tenant  out  of  possession.  In  Archbold's  Nisi  Prius,  vol.  2,  p.  395,  the 
case  is  cited  with  approbation,  and  the  law  stated  in  accordance 
with  it.  In  this  country  the  cases  are  numerous,  and  to  some  extent 
conflicting,  yet  I  think  that  the  larger  number  will  be  found  to  be  in 
accordance  with  the  earlier  English  decisions.  I  have  found  no  case 
in  which  the  question  seems  to  have,  been  more  fully  examined  or 
maturely  considered  than  in  Soivden,  etc.  v.  McMillan's  heirs,  4 
Dana's  R.  456.  The  views  of  the  learned  judge  (Marshall)  who  de- 
livered the  opinion  in  which  the  whole  court  concurred,  are  rested 
on  the  authority  of  several  cases  in  Kentucky,  previously  decided, 
on  a  series  of  decisions  made  by  the  supreme  court  of  New  York, 
and  on  the  three  British  cases  of  Baieman  v.  Allen,  Allen  v.  Riving- 
ton,  and  Read  &  Morpeth  v.  Erington,  before  mentioned.  "These 
three  cases  (he  says)  establish  unquestionably  the  right  of  the  plain- 
tiff to  recover  when  it  appears  that  he  was  in  possession,  and  that 
the  defendant  entered  upon  and  ousted  his  possession,  without 
title  or  authority  to  enter;  and  prove  that  when  the  possession  of 
the  plaintiff  and  an  entry  upon  it  by  the  defendant  are  shown,  the 
right  of  recovery  cannot  be  resisted  by  sho^^^ng  that  there  is  or  may 
be  an  outstanding  title  in  another;  but  only  by  showing  that  the  de^ 
fendant  himself  either  has  title  or  authority  to  enter  under  the  title. 

"It  is  a  natural  principle  of  justice,  that  he  who  is  in  possession 
has  the  right  to  maintain  it,  and  if  wrongfully  expelled,  to  regain  it 
by  entry  on  the  wrong-doer.  When  titles  are  acknowledged  as  separate 
and  distinct  from  the  possession,  this  right  of  maintaining  and  re- 
gaining the  possession  is,  of  course,  subject  to  the  exception  that  it 
cannot  be  exercised  against  the  real  owner,  in  competition  with  whose 
title  it  wholly  fails.  But  surely  it  is  not  accordant  with  the  principles 
of  justice,  that  he  who  ousts  a  previous  possession  should  be  per- 
mitted to  defend  his  wTongful  possession  against  the  claim  of  resti- 
tution merely  by  showing  that  a  stranger,  and  not  the  previous 
possessor  whom  he  has  ousted,  was  entitled  to  the  possession.  The 
law  protects  a  peaceable  possession  against  all  except  him  who  has 
the  actual  right  to  the  possession,  and  no  other  can  rightfully  dis- 
turb or  intrude  upon  it.  While  the  peaceable  possession  continues,  it 
is  protected  against  a  claimant  in  the  action  of  ejectment,  by  per- 
mitting the  defendant  to  show  that  a  third  person  and  not  the  claim- 
ant has  the  right.  But  if  the  claimant,  instead  of  resorting  to  his 
action,  attempt  to  gain  the  possession  by  entering  upon  and  ousting 
the  existing  peaceable  possession,  he  does  not  thereby  acquire  a 
rightful  or  a  peaceable  possession.  The  law  does  not  protect  him 
against  the  prior  possessor.  Neither  does  it  indulge  any  presump- 
tion in  his  favor,  nor  permit  him  to  gain  any  advantage  by  his  own 
wrongful  act." 


110  TAPSCOTT    V.    COBBS.  [CHAP.  H. 

In  Adams  v.  Tiernan,  5  Dana's  R.  394,  the  same  doctrine  is  held; 
it  being  there  again  announced  that  a  peaceable  possession  wrong- 
fully divested,  ought  to  be  restored,  and  is  sufficient  to  maintain 
the  action;  and  that  no  mere  outstanding  superior  right  of  entry  in 
a  stranger  can  be  used  availably  as  a  shield  by  the  trespasser  in  such 
action.  It  has  also  been  repeatedly  reaffirmed  in  later  decisions  of 
the  supreme  court  of  New  York;  and  may  therefore  be  regarded  as 
the  well-settled  law  of  that  state  and  of  Kentucky. 

To  the  same  effect  are  the  decisions  in  New  Jersey,  Connecticut, 
Vermont  and  Ohio.  Penton's  lessee  v.  Sinnickson,  4  Halst.  R,  149; 
Law  V.  Wilson,  2  Root's  R.  102;  Ellithorp  v.  Dewing,  1  Chipm,  R. 
141;  Warner  v.  Page,  4  Verm.  R.  294;  Ludlow's  heirs  v.  McBride,  3 
Ohio  R.  240;  New7iam's  lessee  v.  The  City  of  Cincinnati,  18  Ohio 
R.  327.  In  the  case  of  Ellithorp  v.  Dewing,  1  Chipm.  R.  141,  the  rule 
is  thus  stated:  "Actual  seizin  is  sufficient  to  recover  as  well  as  to 
defend  against  a  stranger  to  the  title.  He  who  is  first  seized  may  re- 
cover or  defend  against  any  one  except  him  who  has  a  paramount 
title.  If  disseized  by  a  stranger,  he  may  maintain  an  action  of  eject- 
ment against  the  disseizor,  and  in  like  manner  the  disseizor  may 
maintain  an  action  against  all  persons  except  his  disseizee,  or  some 
one  having  a  paramount  title." 

In  Delaware,  North  Carolina,  South  Carolina,  Indiana,  and  per- 
haps in  other  states  of  the  Union,  the  opposite  doctrine  has  been 
held. 

In  this  state  of  the  law,  untrammeled  as  we  are  by  any  decisions 
of  our  own  courts,  I  feel  free  to  adopt  that  rule  which  seems  to  me 
best  calculated  to  attain  the  ends  of  justice.  The  explanation  of  the 
law  (as  usually  announced)  given  by  Judge  Marshall  in  the  portions 
of  his  opinion  which  I  have  cited,  seems  to  me  to  be  founded  on  just 
and  correct  reasoning;  and  I  am  disposed  to  follow  those  decisions 
which  uphold  a  peaceable  possession  for  the  protection  as  well  of  a 
plaintiff  as  of  a  defendant  in  ejectment,  rather  than  those  which  in- 
vite disorderly  scrambles  for  the  possession,  and  clothe  a  mere  tres- 
passer with  the  means  of  maintaining  his  wrong,  by  showing  defects, 
however  slight,  in  the  title  of  him  on  whose  peaceable  possession  he 
has  intruded  without  shadow  of  authority  or  title. 

The  authorities  in  support  of  the  maintenance  of  ejectment  upon 
the  force  of  a  mere  prior  possession,  however,  hold  it  essential  that 
the  prior  possession  must  have  been  removed  by  the  entry  or  intru- 
sion of  the  defendant;  and  that  the  entry  under  which  the  defendant 
holds  the  possession  must  have  been  a  trespass  upon  the  prior  pos- 
session. Towden  v.  McMillan's  heirs,  4  Dana's  R.  456.  And  it  is  also 
said  that  constructive  possession  is  not  sufficient  to  maintain  tres- 
pass to  real  property;  that  actual  possession  is  required,  and  hence 
that  where  the  injury  is  done  to  an  heir  or  devisee  by  an  abator,  be- 
fore he  has  entered,  he  cannot  maintain  trespass  until  his  re-entry. 


.SECT.  III.]  TODD    V.    JACKSON.  Ill 

2  Tucker's  Coram.  191.  An  apparent  difficulty,  therefore,  in  the  way 
of  a  recovery  by  the  plaintiffs,  arises  from  the  absence  of  positive 
proof  of  their  possession  at  the  time  of  the  defendant's  entry.  It  is  to 
be  observed,  however,  that  there  is  no  proof  to  the  contrary.  Mrs, 
Lewis  died  in  possession  of  the  premises,  and  there  is  no  proof  that 
they  were  vacant  at  the  time  of  the  defendant's  entr5^  And  in  Gil- 
bert's Tenures,  37  (in  note),  it  is  stated,  as  the  law,  that  as  the  heir 
has  the  right  to  the  hereditaments  descending,  the  law  presumes 
that  he  has  the  possession  also.  The  presumption  may  indeed,  like 
all  other  presumptions,  be  rebutted:  but  if  the  possession  be  not 
shown  to  be  in  another,  the  law  concludes  it  to  be  in  the  heir. 

The  presumption  is  but  a  fair  and  reasonable  one;  and  does,  I 
think,  arise  here ;  and  as  the  only  evidence  tending  to  show  that  the 
defendant  sets  up  any  pretense  of  right  to  the  land,  is  the  certificate 
of  the  surveyor  of  Buckingham,  of  an  entry  by  the  defendant,  for  the 
same,  in  his  office,  in  December,  1844;  and  his  possession  of  the  land 
must,  according  to  the  evidence,  have  commenced  at  least  as  early 
as  some  time  in  the  year  1842;  it  seems  to  me  that  he  must  be  re- 
garded as  standing  in  the  attitude  of  a  mere  intruder  on  the  posses- 
sion of  the  plaintiffs. 

Whether  we  might  not  in  this  case  presume  the  whole  of  the 
purchase  money  to  be  paid,  and  regard  the  plaintiffs  as  having  a 
perfect  equitable  title  to  the  premises,  and  in  that  view  as  entitled 
to  recover  by  force  of  such  title;  or  whether  we  might  not  resort  to 
the  still  further  presumption  in  their  favor,  of  a  conveyance  of  the 
legal  title,  are  questions  which  I  have  not  thought  it  necessary  to 
consider;  the  view,  which  I  have  already  taken  of  the  case,  being 
sufficient,  in  my  opinion,  to  justify  us  in  affirming  the  judgment. 

Judgment  affirmed. 

Allen,  Moncure  and  Samuels,  Js.,  concurred  in  the  opinion  of 
Daniel,  J, 

Lee,  J.,  dissented. 


TODD   V.  JACKSON. 

2  Dutch.  (N.J.)  525.     1857. 

Action  in  trespass  m  which  the  plaintiff  sought  to  recover  full 
damages  for  a  permanent  injury  to  land. 

The  Chancellor.  This  deed  was  evidently  admitted  by  the 
court  below,  for  the  purpose  of  measuring  the  damages  which  the 
plaintiffs  were  entitled  to  recover.  The  injury  done  by  the  trespass 
was  to  the  permanent  injury  of  the  freehold;  and  the  judge  seemed 
to  think  that,  in  order  to  entitle  the  plaintiffs  in  this  case  to  recover 
the  full  extent  of  the  injury  done,  it  was  necessary  for  them  to  show 


112  TODD    V.    JACKSON.  [CHAP.  H 

their  title.  The  judge  said  to  the  jury:  "If  the  plaintiffs  had  no  in- 
terest, then,  beyond  a  naked  possession,  the  amount  of  their  recovery 
should  be  graduated  by  one  scale;  if  their  possession  was  coupled 
with  an  interest  in  the  estate  real  and  personal,  or  either,  it  should 
be  graduated  by  another  scale."  The  Supreme  Court,  adopting  this 
view  of  the  judge  at  the  circuit,  and  citing  with  approbation  this 
part  of  his  charge,  took  it  for  granted  that  if  the  principles  thus 
laid  do^Ti  were  correct  (and  they  certainly  were),  the  materiality 
of  the  deed,  as  to  the  extent  of  the  damages  which  the  plaintiffs  were 
entitled  to  recover,  was  beyond  dispute.  Here,  I  think,  both  the  judge 
at  the  circuit  and  the  Supreme  Court  erred,  and  that  the  deed  was 
not  material  to  any  questions  which  were  submitted  to  the  jury, 
because  the  plaintiffs'  title,  beyond  their  possession,  was  not  put  in 
issue  by  the  pleadings,  nor  by  the  defendants,  on  the  trial,  in  miti- 
gation of  damages. 

In  order  to  establish  the  materiality  of  that  deed  as  evidence, 
you  must  maintain  the  broad  proposition  that,  in  an  action  of  tres- 
pass quare  clausum,  it  is  necessary,  in  order  to  entitle  the  plaintiff  to 
recover  the  full  extent  of  damages  done  to  the  freehold,  that  he  should 
prove  his  title  to  the  inheritance.  If  the  proposition  be  true,  then  if 
A  bring  an  action  against  B  for  cutting  down  timber  trees  upon  his 
land  or  pulling  do\\Ti  a  house,  A  cannot  recover  the  value  of  the 
building  or  of  the  trees  cut,  unless  he  shows  his  title  in  the  land  in 
addition  to  his  possession.  I  think  it  may  be  affirmed  with  great 
confidence  that  such  a  principle  cannot  be  found  laid  down  by  any 
elementary  writer,  and  that  no  respectable  authority  can  be  found 
for  it. 

The  action  of  trespass,  both  as  to  real  and  personal  property,  is  a 
possessory  action.  A  party  in  possession  is,  prima  facie,  the  owner, 
and  that  possession  will  entitle  him  to  recover  to  the  extent  of  the 
injury  done,  unless  the  defendant  show  something  in  mitigation  of 
the  damages.  If,  then,  the  defendants  could  avail  themselves  of  the 
principle  laid  down  by  the  judge,  "that,  if  the  plaintiffs  had  no  inter- 
est there  beyond  a  naked  possession,  the  amount  of  their  recovery 
should  be  graduated  by  one  scale,"  it  was  incumbent  on  them,  in 
order  to  entitle  themselves  to  have  the  damages  graduated  by  that 
scale,  to  prove  that  the  plaintiffs  had  no  interest  beyond  a  naked 
possession,  or  to  qualify  their  possession  in  some  way.  The  defend- 
ants raised  no  such  issue  before  that  jur3^  They  offered  no  evidence 
to  qualify  the  possession  of  the  plaintiffs.  They  did  not  rebut  the 
prima  fade  case,  which  resulted  from  the  fact  of  possession,  that  the 
plaintiffs  were  entitled  to  recover  to  the  full  extent  of  the  injury. 
It  would  be  a  monstrous  doctrine  to  establish,  and  fraught  with  in- 
numerable evils,  that  a  plaintiff  in  trespass  cannot  recover  for  a 
permanent  injury  done  to  the  freehold,  and  to  the  full  extent  of 
the  injury,  without  first  establishing  his  title  to  the  freehold,  in 


BECT.  III.]  ILLINOIS    COAL    CO.    V.    COBB.  US 

addition  to  his  title  by  pos^  m.  What  would  be  the  consequence 
in  those  numerous  cases  wl,  men  are  in  peaceable  possession  of 
property,  and  have  paid  for  i.,  -nd  yet  through  some  neglect  have 
failed  to  procure  a  title,  or  have  lost  their  title  deed?  Can  any 
stranger  enter  upon  such  possession,  pull  dowm  the  dwelling  house 
over  the  head  of  the  occupant,  and  when  called  to  respond  in 
damages,  complacently  ask  the  person  he  has  injured  to  exliibit  his 
documentary  evidence  of  title?  A  man  who  is  in  possession  of  a 
dwelling  house  has,  by  that  possession,  a  title  good  against  all  the 
world  for  everj^  purpose,  until  a  superior  one  is  sho^Ti;  and  most 
certainly  it  cannot  be  the  law,  and  ought  not,  that  such  possession 
is  not  prima  fade  evidence  of  title  against  a  wanton  wTong-doer. 
It  is  certainly  true,  as  stated  by  the  Supreme  Court,  that  a  rever- 
sioner may  bring  his  action  on  the  case  for  damages  done  to  the  free- 
hold affecting  his  reversionary  interest.  But  if  it  be  correct,  that  a 
person  in  possession  camiot  recover  damages  for  an  injurj-  for  which 
the  reversioner  is  entitled  to  his  action,  the  trespasser  must  show  that 
there  is  such  a  reversioner,  and  that  the  damages  should  be  miti- 
gated, because  he,  the  defendant,  is  answerable  over  for  the  same 
injury  to  another  person. 

Note.  —  In  Woods  v.  Banks,  14  N.H.  101,  the  court  said  (p.  113) : 
"The  plaintiff's  possession  is  prima  facie  evidence  of  title.  There 
is  nothing  in  the  case  now  to  rebut  it.  There  is  in  fact  nothing  to 
lead  to  a  supposition  that  the  defendant  can  be  made  liable  to  the 
action  of  any  other  person.  The  possession  of  the  plaintiff,  then, 
and  the  evidence  of  title  which  it  furnishes,  stands  wholly  unim- 
peached." 

See  also  Rau  v.  Minnesota  R.R.  Co.,  13  Minn,  442,  445. 


ILLINOIS  COAL  CO.   v.   COBB. 

94  111.  55.     1879. 

Mr.  CniEFJusTiCEWALKERdeliveredthe  opinion  of  the  court.  .  .  . 

Another  ground  is  urged,  in  reference  to  the  question  of  damages, 
for  a  reversal.  Appellant  gave  evidence  tending  to  prove  an  out- 
standing title  to  the  property  in  controversy  in  the  village  of 
Cahokia.  And  appellant  asked,  but  the  court  refused  to  give,  this 
instruction:  — 

"If  the  defendant  has  shown  that  the  title  to  the  land  described 
by  the  declaration,  at  the  time  when  the  trespass  is  said  to  have  been 
committed,  was  outstanding,  that  is  to  say,  not  in  the  plaintiff,  the 
plaintiff  cannot  recover  damages  for  an  injury  that  may  have 
been  done  to  the  freehold  or  to  the  land,  soil  or  sand,  but  only  such 


114  ILLINOIS    COAL    CO.    V.    COBB.  [CHAP.  II. 

injury,  if  any  have  been  shown,  that  was  done  to  the  possession  or 
property  of  the  plaintiff." 

This  raises  the  question  whether  a  mere  trespasser  may  justify 
his  wrong  to  all  but  the  actual  damage  done  to  the  possession,  by 
showing  a  title  in  a  third  person.  Or,  to  state  the  proposition  dif- 
ferently^, can  he  mitigate  the  damages  so  as  to  prevent  a  recovery  for 
all  damages  beyond  the  actual  injury  to  this  mere  possession. 

Judge  CooLEY,  in  his  work  on  Torts,  p.  .326,  says:  "Presumptively, 
a  peaceful  possession  is  always  rightful,  and  the  proof  of  it  is  sufficient 
evidence  of  the  title  to  enable  one  to  recover  in  ejectment  against 
one  subsequently  found  in  possession  and  who  shows  no  right  in 
himself." 

Where  lands  are  in  the  possession  of  a  tenant,  and  a  trespass  is 
committed  on  the  land,  the  law  is  long  and  well  settled  that  the  ten- 
ant may  sue  and  recover  for  the  injury  he  has  suffered  by  reason  of 
the  loss  he  has  sustained  as  a  tenant,  and  the  landlord  as  a  rever- 
sioner may  sue  and  recover  in  respect  to  the  injury  he  has  sustained 
to  his  reversion.  In  such  a  case,  there  may  be  two  recoveries  for  in- 
juries to  the  respective  estates,  of  the  tenant  and  the  landlord.  This 
was  so  held  by  the  British  courts  at  an  early  day,  and  the  rule  has 
never  been  disregarded  by  the  courts  of  that  country  or  by  the  courts 
of  the  various  States  of  the  Union,  so  far  as  our  researches  have  led 
us  in  the  investigation  of  the  question.  But  no  such  relation  exists 
in  this  case,  and  that  rule  can  have  no  application  here. 

In  the  case  of  Catteris  v.  Cowper,  4  Taunt.  547,  the  plaintiff  sued 
for  trespass  in  entering  upon  land  lying  between  premises  rented  by 
plaintiff,  and  the  river  Ouse,  by  the  defendant,  and  cutting  grass. 
The  land  bore  grass  which  every  one  cut  who  chose,  until  two  j'ears 
before  the  action  was  brought,  and  plaintiff's  only  title  was,  that 
two  years  previously  he  had  taken  possession  and  twice  mowed  the 
grass,  and  afterwards  pastured  a  cow  on  the  strip. 

The  defendant's  case  was,  that  the  plaintiff,  when  he  first  cut  the 
grass,  had  boasted  that  he  cut  hay  on  land  for  which  he  paid  neither 
rent  nor  taxes;  that  in  a  former  j-ear  he  had  purchased  the  hay  cut 
by  another  man  on  the  ground,  and  that  a  few  years  before  the  trial, 
in  repairing  the  boundary  fence  of  his  farm,  plaintiff  had  excluded, 
by  his  fence,  the  land  in  question,  and  had  frequently  shown  to  other 
persons  the  boundaries  of  his  farm  as  excluding  this  land ;  but  Heath, 
who  tried  the  case,  excluded  this  evidence  offered  by  defendant, 
and  the  plaintiff  recovered.  Afterr^-ards,  on  a  rule  to  show  cause 
why  the  verdict  should  not  be  set  aside  and  a  new  trial  granted,  on 
a  trial  in  the  Common  Pleas,  the  rule  was  discharged.  The  court  said: 
"The  case  was  decided  rightly  upon  the  merits.  The  defendant 
stands  neither  on  any  former  possession  of  his  own  nor  derives  title 
under  the  possession  of  any  other  person.  His  only  objection  to  the 
plaintiff's  recovery  is,  that  he  has  not  proved  the  title  he  stood  on; 


SECT.  III.]  ILLINOIS    COAL    CO.    V.    COBB.  115 

that  this  land  was  parcel  of  the  farm  he  held;  but  no  answer  is  given 
to  the  fact  of  his  prior  possession.  The  merits  are  clearly  against  the 
defendant."  The  rule  announced  seems  to  have  been  so  clear  as  to 
have  called  for  the  reference  to  no  authority  or  any  reasoning  to  es- 
tablish the  rule. 

In  Allen  v.  Rivington,  2  Saund.  Ill,  and  Doe  ex  dem.  Borough  v. 
Reade,  8  East,  356,  it  was  held,  that  a  party  could  recover  in 
ejectment,  or  defend  in  such  an  action,  on  a  former  mere  naked 
possession.  In  the  case  of  Day  v.  Alverson,  9  Wend.  223,  it  was 
held,  that  a  plaintiff  claiming  the  premises  in  fee  is  entitled  to 
recover,  although  he  only  show  title  by  possession.  In  the  case  of 
Jackson  ex  dem.  etc.  v.  Town,  4  Cow.  602,  it  was  held,  that  actual 
possession  is  prima  facie  evidence  of  legal  title  to  the  premises  for 
which  ejectment  is  brought;  and  it  is  one  of  the  most  familiar  rules, 
that  any  person  in  the  actual  possession  of  land  may  recover  in  tres- 
pass against  a  wrongdoer.  In  fact,  the  plaintiff  must  have  the  actual 
possession,  or  the  legal  title  which  draws  to  it  the  legal  possession, 
before  he  can  recover  in  trespass. 

In  Graham  v.  Peat,  1  East,  244,  it  was  held,  where  one  was  in  pos- 
session of  glebe  lands  under  a  lease  void  under  the  statute  by  reason 
of  the  non-residence  of  the  rector,  that  he  might  nevertheless  recover 
in  trespass  upon  his  possession  against  a  wrongdoer.  At  Nisi  Prius, 
the  plaintiff,  on  proof  of  the  absence  of  the  rector  the  length  of  time 
necessary  to  render  the  lease  void,  was  nonsuited;  but  the  Court  of 
King's  Bench  reversed  the  judgment,  holding  that  plaintiff  was  en- 
titled to  recover,  as  the  defendant  had  shown  no  title,  but  was  only 
a  wrongdoer.  Lord  Kenyon  said:  "Any  possession  is  a  legal  pos- 
session against  a  wrongdoer.  Suppose  a  burglary  committed  in  a 
dwelling  house  of  such  a  one,  must  it  not  be  laid  to  be  his  dwelling 
house  notwithstanding  the  defect  of  his  title  under  the  statute?" 

The  same  question  was  again  before  the  court  in  Chambers  v. 
Donaldson,  11  East,  65.  In  this  last  case  a  plea  was  filed  that  the  soil 
and  freehold  were  the  property  of  one  Postman,  and  that  defendants, 
as  his  servants  and  by  his  command,  broke  and  entered  the  close. 
To  this  plea  plaintiff  replied,  admitting  that  Postman  was  the  o^vaier 
of  the  soil  and  freehold,  etc.,  and  traversed  that  they  were  the  serv- 
ants, etc.,  and  by  his  command  committed  the  trespass  in  the  man- 
ner and  form  as  in  the  plea  mentioned.  A  demurrer  was  filed  to  this 
replication,  and  causes  were  assigned  that  though  the  replication 
admitted  that  the  dwelling  house  was  the  soil  and  freehold  of  Post- 
man, yet  by  his  replication  he  stated  that  one  Green  demised  the 
dwelling  house  to  plaintiff  to  hold  as  therein  mentioned  without 
showing  any  legal  title  to  do  so.  And  because  plaintiff  admitted 
Postman  to  be  the  owner  of  the  dwelling  house  but  had  not  deduced 
any  title  from  him  to  Green,  and  that  plaintiff  had  attempted  to  put 
in  issue  an  immaterial  fact,  etc. 


116  ILLINOIS    COAL    CO.    V.    COBB.  [CHAP.  H. 

On  the  argument  it  was  conceded  on  both  sides,  that  by  showing 
that  the  title  was  in  a  third  person  and  defendant  had  entered  by  his 
command,  the  plaintiff,  to  recover,  would  have  been  required  to  show 
title  in  himself.  And  it  was  claimed  that  the  authority  to  enter, 
averred  in  the  plea,  was  not  traversable,  but  bj^  merely  showing  title 
in  another  than  the  plaintiff,  he  was  barred  of  a  recovery.  But  the 
judges  concurred  in  holding  that  the  command  of  the  owner  to  enter 
was  traversable.  Lord  Ellenborough  said:  "Unless  the  command 
be  traversable  it  will  be  sufficient  for  a  mere  wrongdoer,  who  has 
invaded  the  quiet  possession  of  the  plaintiff,  to  plead  title  in  another 
and  under  authority  from  him,  although  that  other  did  not  ques- 
tion the  plaintiff's  possession.  Nay,  ...  it  might  be  contended  that 
the  same  defence  could  be  set  up  against  a  plaintiff  who  had  been  in 
possession  for  twenty  years,  and  this  monstrous  consequence  would 
ensue,  that  the  wrongdoer  would  protect  himself  under  a  title  which 
the  party  himself  could  not  assert  in  any  possessory  action.  But  since 
it  has  been  settled  .  .  .  that  trespass  may  be  maintained  by  a  person 
in  possession,  against  a  wTongdoer,  we  are  called  upon  to  strip  the 
WTongdoer  of  this  shield."  See,  also,  Harker  v.  Birkheck,  3  Burr. 
1556.  Other  English  cases  might  be  cited  in  support  of  the  doctrine 
if  it  was  deemed  necessary. 

In  Sedgwick  on  Damages,  149,  it  is  said:  "It  is  well  settled  in 
England,  and  generally  in  the  United  States,  that,  to  entitle  the 
plaintiff  to  bring  an  action  of  trespass  quare  clausum  fregit,  posses- 
sion in  fact  is  indispensable;  and  as  against  a  -^Tongdoer,  bare  pos- 
session is  sufficient."  The  rule  is  sustained  by  the  cases  of  First 
Parish,  etc.  v.  Smith,  14  Pick.  297;  Branch  v.  Dane,  18  Conn.  233; 
Curtis  V.  Hoyt,  19  id.  154.  In  this  last  case,  it  was  held,  that  the 
plaintiff  in  trespass,  having  the  sole  and  exclusive  possession,  may 
recover  against  the  wrongdoer  the  whole  damage  done  by  him, 
though  the  conveyance  from  some  of  those  under  whom  he  claims 
was  defective. 

In  the  case  of  Harker  v.  Dement,  9  Gill,  7,  it  was  held,  that  in  an 
action  by  a  termor  against  his  reversioner,  the  measure  of  damages 
is  the  actual  loss  sustained  bj^  the  lessee ;  but  in  such  an  action  against 
a  stranger  and  wrongdoer,  the  termor  is  treated  as  the  absolute  owner 
of  the  property,  and  is  held  to  be  entitled  to  recover  its  full  value. 
The  general  rule  is  announced  in  Webb  v,  Sturfevant,  1  Scam.  181. 
See,  also,  Gilbert  v,  Kennedy,  22  Mich.  5.  It  will  be  observed  that  in 
none  of  these  cases  is  anything  said  as  to  showing  an  outstanding  title 
in  mitigation  or  reduction  of  damages;  nor  have  we  found  any  case, 
nor  has  appellant's  counsel  referred  us  to  any,  which  has  so  held, 
unless  it  is  where  the  plaintiff  was  a  tenant.  If  such  cases  exist,  we 
and  counsel  have  been  unable  to  find  them;  nor  do  the  text  books 
suggest  any  such  distinction,  whilst  they  do  where  the  plaintiff  is  a 
tenant,  or  holds  under  another;  that  he  only  has  an  action  for  injury 


SECT.  III.]  ILLINOIS   COAL   CO.    l\    COBB.  117 

done  to  his  mere  possessory  right,  and  the  landlord,  or  reversioner, 
for  all  damage  done  to  the  reversion.  If  the  rule  is  different  from 
that  stated  in  the  adjudged  cases  and  -commentators  to  whom  we 
have  referred,  we  should  have  found  the  distinction  between  the 
rights  of  the  true  o\\aier  and  the  person  in  possession  —  the  pre- 
sumptive owner  —  stated  in  some  adjudged  case.     "  "^'"■''^'•■t^&m:^  I 

There  is  a  broad  distinction  between  a  case  where  a  mere  tres- 
passer commits  the  wrong  without  title,  and  where  it  is  done  bj'  the 
owner  of  the  title,  or  by  one  authorized  by  him  to  commit  the  wrong. 
In  this  latter  case  the  person  in  peaceable  possession  can  only  re- 
cover the  damage  he  has  sustained  to  his  possessory  right.  But  a 
person  in  peaceable  possession,  suing  for  a  trespass  to  the  freehold, 
should  never  be  put  upon  proof  of  his  title  to  recover  against  a  wrong- 
doer having  no  title.  Being  in  possession  the  law  presumes  him  to 
be  the  owner,  and  will  not  permit  a  ^Tongdoer  to  question  or  call 
upon  him  to  produce  his  title  to  sustain  his  action. 

When  this  case  was  previously  before  us,  it  was  held  that  the 
prior  peaceable  possession  of  Cobb  claiming  title  was  sufficient  to 
warrant  a  recovery  as  against  a  WTongdoer.  And  in  that  case  there 
was  an  instruction  asked  and  refused,  which  was  similar  in  principle 
to  this  one,  and  whilst  it  was  not  commented  on  it  was  regarded  as 
vicious.  This  question  was  then  argued,  and  in  disposing  of  it, 
without  referring  to  the  instruction,  it  was  said:  "The  whole  case 
must  turn  upon  the  question  of  the  date  and  nature  of  the  several 
possessions  set  up  by  the  parties  respectively."  The  instruction 
was  thus  condemned.  Had  it  been  held  good,  its  refusal  would  have 
been  noticed  as  a  ground  for  reversal. 

To  hold  that  a  wrongdoer  may  put  a  plaintiff  in  peaceable  pos- 
session upon  the  proof  of  his  title,  to  enable  him  to  a  recovery,  would 
be  a  harsh  rule.  If  there  should  be  any  technical  objection  to  any 
link  in  his  chain  of  title  he  would  fail,  although  no  other  person  was 
claiming  title  and  might  never  claim.  His  title  might  be  clearly 
equitable,  unclaimed  and  unchallenged  by  the  person  holding  the 
legal  title,  and  yet,  if  such  a  rule  should  prevail,  the  equitable  o-wner 
and  occupant  might  have  his  property  destroj'ed  and  only  recover 
nominal  damages.  Many  titles  are  defective  in  the  want  of  proper 
acknowledgments  or  other  mere  technical  defects,  and  yet  no  one 
claims  or  challenges  the  title  of  the  occupant  claiming  to  be  the  owner, 
and  shall  it  be  said,  that  he  shall  not  be  protected  against  a  reckless, 
lawless  wrongdoer?  The  wrongdoer  should  in  justice  make  recom- 
pense to  some  one  for  the  wrong  and  loss  he  has  inflicted  upon  the 
property,  and  no  reason  is  perceived  why  he  should  have  a  choice  as 
to  whom  he  will  pay  the  damages.  A  recovery  by  the  occupant  is  a 
bar  to  all  future  recoveries,  and  it  in  nowise  concerns  him  who  shall 
have  the  benefit  of  that  recovery.  Benjamin  v.  Stumph,  13  111.  4G6; 
Lyle  V.  Baker,  5  Binn.  457;  Chamberlin  v.  Shaw,  18  Pick.  278;  and 


118  WINCHESTER    V.    CITY    OF    STEVENS    POINT.  [CHAP.  II. 

White  V.  Wehb,  15  Conn.  302,  show  a  recovery  as  against  a  wrongdoer 
may  be  had  of  the  full  value  when  a  recovery  is  had. 

The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affirmed. 

NoTs.  —  See,  accord,  Reed  v.  Price,  30  Mo.  442. 


WINCHESTER  v.   CITY  OF  STEVENS  POINT. 

58  Wis.  350.     1883. 

Cole,  C.J.  It  is  plain  that  the  plaintiff  in  her  complaint  does  not 
treat  thie  as  an  ordinary  action  of  trespass  to  the  realty.  She  alleges 
that  she  was  the  o^vner  in  fee  simple  and  in  the  actual  possession  of 
the  premises  described.  Her  gravamen  is  that  the  defendant  city 
has  constructed  a  dike  or  embankment  in  front  of  these  premises, 
which  renders  them  inaccessible,  and  that  this  embankment  dams 
up  the  water  and  sets  it  back  upon  her  lots.  Then  comes  the  aver- 
ment, "by  means  whereof  the  said  premises  are  greatly  diminished 
in  value,  and  the  plaintiff  has  sustained  damage  in  the  sum  of  $700." 
If  there  could  be  any  doubt  that  the  action  is  for  a  permanent  injury 
to  the  realty,  it  would  be  removed  by  the  character  of  the  evidence 
offered  on  the  part  of  the  plaintiff  on  the  trial  to  sustain  her  case. 
For  instance,  the  witness  Packard  was  asked  what,  in  his  opinion, 
was  the  damage  to  the  premises  arising  from  the  building  of  the  dike, 
and  then  how  much  they  were  damaged  in  value  by  reason  of  the 
damming  up  of  the  water  and  setting  it  about  the  premises.  This  and 
other  testimony,  of  the  same  character,  was  given  by  plaintiff  against 
defendant's  objection.  The  court,  also,  in  one  portion  of  its  charge, 
in  effect  told  the  jury  that  the  plaintiff,  in  order  to  recover,  must 
satisfy  them  that  she  was  the  o\\Tier  of  the  property  alleged  to  be 
injured.  These  remarks  are  made  for  the  purpose  of  showing  that  the 
action  is  not  for  the  mere  injury  to  the  possession,  but  is  to  recover 
damages  for  an  injury  to  the  freehold.  That  being  the  case,  it  was 
essential  for  the  plaintiff  to  show  a  title  beyond  what  would  be 
necessary  to  maintain  trespass ;  for  the  questioil  of  title  was  made  a 
material  issue  by  the  pleadings.  There  was  no  dispute  about  plain- 
tiff's possession.  But  she  attempted  to  prove  a  good  paper  title  and 
failed.  Nevertheless,  she  recovered  for  the  permanent  depreciation 
in  the  value  of  the  propertj^  The  question  is.  Can  the  recovery  be 
sustained  upon  the  evidence  given? 

It  seems  to  be  assumed  that  damages  for  a  permanent  injury  to 
the  freehold  —  that  is,  an  injury  which  not  only  affects  the  present 
use  and  enjojmient  of  the  property,  but  its  value  for  all  future  time 
—  are  recoverable  in  this  action,  though  it  is  apparent  the  embank- 
ment may  be  removed  any  day,  or  so  reduced  in  height  as  to  restore 


SECT.  III.]         WINCHESTER    V.    CITY    OF    STEVENS    POINT.  119 

the  property  to  its  condition  when  she  acquired  it.  There  doubtless 
may  be  an  injury  to  the  freehold  which  is  permanent  in  its  character; 
but  was  this  such  an  one?  The  suggestion  is  made  without  deciding 
the  point. 

But  what  proof  of  title  was  it  necessary  for  the  plaintiff  to  make 
in  order  to  maintain  the  action  on  the  theory  upon  which  it  was 
tried?  Her  counsel  contends  it  was  sufficient  for  her  to  show  she  was 
in  actual  possession  under  claim  of  title.  He  also  says  that  she  estab- 
lished a  good  paper  title;  but  this  certainly  is  a  mistake.  Not  to  dwell 
on  other  defects  in  her  claim  of  title,  it  wall  be  noticed  that  the  deeds 
from  Kingston  to  Fay,  and  from  Solomon  Smith  to  William  Randall, 
each  had  but  one  subscribing  witness.  The  former  was  excluded; 
the  latter  was  admitted  in  evidence  against  objection.  Neither  of 
the  deeds  was  entitled  to  be  recorded,  and  could  not  be  proven  by  the 
record  as  the  last  one  was. 

There  are  authorities  which  hold  that  the  seizin  of  the  plaintiff  in 
anj^  real  action  is  proved,  prima  facie,  by  evidence  of  his  actual  pos- 
session under  claim  of  title.  Ward^s  Heirs  v.  Mcintosh,  12  Ohio  St. 
231;  Gulf  R.R.  Co.  v.  Owen,  8  Kan.  410.  Prof.  Greenleaf  so  states 
the  rule.  2  Greenl.  on  Ev.  §  555.  See,  also,  Rau  v.  M.  V.  R.R.  Co., 
13  :Minn.  442;  St.  P.  &  S.  C.  R.R.  Co.  v.  Matthews,  16  Minn.  341. 
That  is,  these  facts  afford  presumptive  evidence  of  seizin  in  fee  simple, 
until  the  contrary  appears.  But  that  rule  would  not  save  the  plain- 
tiff's case,  because  she  offered  evidence  which  disproved  or  over- 
came the  presumption  arising  from  these  facts.  She  was  not  content 
to  show  actual  possession  under  claim  of  title,  but  she  undertook  to 
prove  title  and  failed.  The  evidence  was  probably  offered  to  prove 
an  adverse  possession,  under  paper  title,  for  ten  years.  That  would 
have  been  sufficient  had  she  established  the  fact  of  such  adverse 
possession  for  the  requisite  time.  But  she  did  not;  so  the  question 
returns,  Was  not  the  plaintiff  bound,  under  the  circumstances,  to 
prove  her  title?  We  think  she  was.  For  if  she  was  not  the  owner  of 
the  premises,  why  should  she  recover  damages  for  a  permanent  in- 
jury to  them?  She  saw  fit  to  put  her  title  in  issue,  to  rely  upon  it, 
and  sought  to  recover  as  owner.  The  case  is  much  like  condemnation 
proceedings,  and  should  be  governed  by  the  same  rule  as  to  proof  of 
title.  Since  the  early  case  of  Robhins  v.  M.  &  H.  R.R.  Co.,  6  Wis.  636, 
it  has  been  understood  that  the  plaintiff  must  show  title,  and  that  title 
will  not  be  presumed  from  evidence  of  possession  under  claim  of  title. 

Note.  —  Other  authorities  to  the  effect  that  a  mere  possessor  of 
land  cannot  recover  damages  for  a  permanent  injury  to  it  are  Walte- 
meyer  v.  Wisconsin  Ry.Co.,l\  Iowa,  626;  Anderson  v.  Thunder  Bay 
River  Boom  Co.,  57  Mich.  216;  Kelly  v.  New  York  Ry.  Co.,  81  N.Y. 
233;  Frisbeev.  Marshall,  122  N.C.  760,  765;  International  Ry.  Co.  v. 
Ragsdale,  67  Tex.  24,  28. 


120  ANDERSON    V.    GOULDBERG.  [CHAP.  H. 

ANDERSON  v.  GOULDBERG. 

51  Minn.  294.     1892. 

Appeal  by  defendants,  Hans  J.  Gouldberg  and  D,  0.  Anderson, 
from  an  order  of  the  District  Court  of  Isanti  County,  Lochren,  J., 
made  November  14,  1892,  refusing  a  new  trial. 

This  action  was  brought  by  the  plaintiff,  Sigf rid  Anderson,  against 
the  defendants,  partners  as  Gouldberg  &  Anderson,  to  recover  the 
possession  of  ninety-three  pine  logs,  marked  L  S  X,  or  for  the  value 
thereof.  Plaintiff  claimed  to  have  cut  the  logs  on  section  22,  town- 
ship 27,  range  25,  Isanti  County,  in  the  winter  of  1889-1890,  and 
to  have  hauled  them  to  a  mill  on  section  6,  from  which  place  defend- 
ants took  them.  The  title  to  section  22  was  in  strangers,  and  plaintiff 
showed  no  authority  from  the  owners  to  cut  logs  thereon.  Defend- 
ants claimed  that  the  logs  were  cut  on  section  26,  in  the  adjoining 
township,  on  land  belonging  to  the  Ann  River  Logging  Company, 
and  that  they  took  the  logs  by  direction  of  the  Logging  Company, 
who  were  the  owners.  The  court  charged  that  even  if  plaintiff'  got 
possession  of  the  logs  as  a  trespasser  his  title  would  be  good  as  against 
any  one  except  the  real  owner  or  some  one  who  had  authority'  from 
the  owner  to  take  them,  and  left  the  case  to  the  jury  on  the  question 
as  to  whether  the  logs  were  cut  on  the  land  of  the  Logging  Company, 
and  taken  by  defendants  under  its  authority.  The  jury  found  a  ver- 
dict for  the  plaintiff  and  assessed  his  damages  at  SI 53 .45.  From  an 
order  denying  their  motion  for  a  new  trial,  defendants  appeal. 

Mitchell,  J.  It  is  settled  by  the  verdict  of  the  jury  that  the  logs 
in  controversy  were  not  cut  upon  the  land  of  the  defendants,  and 
consequently  that  they  were  entire  strangers  to  the  property. 

For  the  purposes  of  this  appeal,  we  must  also  assume  the  fact  to 
be  (as  there  was  evidence  from  which  the  jury  might  have  so  found) 
■  that  the  plaintiffs  obtained  possession  of  the  logs  in  the  first  instance 
by  trespassing  upon  the  land  of  some  third  party. 

Therefore  the  only  question  is  whether  bare  possession  of  property, 
though  wrongfully  obtained,  is  sufficient  title  to  enable  the  party 
enjoying  it  to  maintain  replevin  against  a  mere  stranger,  who  takes 
it  from  him.  We  had  supposed  that  this  was  settled  in  the  affirmative 
as  long  ago,  at  least,  as  the  early  case  of  Armory  v.  Delamine,  1 
Strange,  505,  so  often  cited  on  that  point. 

When  it  is  said  that  to  maintain  replevin  the  plaintiff's  possession 
must  have  been  lawful,  it  means  merely  that  it  must  have  been  law- 
ful as  against  the  person  who  deprived  him  of  it ;  and  possession  is 
good  title  against  all  the  world  except  those  having  a  better  title. 

Counsel  says  that  possession  only  raises  a  presumption  of  title, 
which,  however,  may  be  rebutted.  Rightly  understood,  this  is  cor- 
rect; but  counsel  misapplies  it.    One  who  takes  property  from  the 


SECT.  III.]  ANDERSON    V.    GOULDBERG.  121 

possession  of  another  can  only  rebut  this  presumption  by  showing 
a  superior  title  in  himself,  or  in  some  way  connecting  himself  with 
giie  who  has.  One  who  has  acquired  the  possession  of  property, 
\v^  Ji$^ether^y  finding,  bailment,  or  by  mere  toYt^'has  a  right  to  retain 
sn\-'  "^^  that  possessioif  as  against  a  mere  wrongdoer  who  is  a  stranger  "to 
vV  >|'\^e~progerty.  Any  other  rule  would  lead  to  an  endless  series  of  ui- 
^  ^  lawful  seizuFes  and  reprisals  in  every  case  where  property  had  once 
3  y     passed  out  of  the  possession  of  the  rightful  OT\Tier. 

Order  affirmed. 

Note.  —  See,  accord,  Odd  Fellows  Hall  Association  v.  McAllister, 
153  Mass.  292,  295;  Sanford  v.  Millikin,  144  Mich.  311;  Freshwater 
V.  Nichols,  7  Jones  (N.C.),  251;  Lewis  v.  Birdseij,  19  Oreg.  164,  170o 
But  cf.  Chambers  v.  Hunt,  3  Harrison  (N.J.),  339. 


BOOK  11. 

SOME   METHODS  OF  ACQUIRING 
TITLE  TO   CHATTELS. 


NOTE. 


The  subject  of  acquiring  title  to  chattels  may  profitably  be  divided 
into  three  parts:  (1)  the  acquisition  of  title  to  chattels  having  no 
former  owner;  (2)  the  acquisition  of  title  to  chattels  having  a  former 
owner,  regardless  of  his  consent;  and  (3)  the  acquisition  of  title  to 
chattels  having  a  former  owner,  with  his  consent. 

Only  a  few  of  the  many  methods  of  acquiring  title  to  chattels  are 
here  considered. 

The  acquisition  of  title  to  chattels  having  no  former  o\\Tier  is  il- 
lustrated Ijy  the  acquisition  of  title  to  wild  animals.  But  such  title 
is  acquired  by  reducing  the  animal  to  possession,  and  what  amounts 
to  a  reduction  to  possession  has  already  been  considered. 

Certain  methods  of  acquiring  title  to  chattels  having  a  former 
owner,  regardless  of  his  consent,  are  considered  in  detail  in  chapters 
one  to  six,  inclusive,  in  this  book. 

Of  course  the  title  to  chattels  having  a  former  o\\Tier  is  usually 
acquired  by  some  method  involving  his  consent.  The  law  as  to  sales 
of  personal  property,  and  mortgages  of  personal  property,  and  as 
to  the  disposition  of  the  property  of  deceased  persons  is  considered 
in  other  courses  given  in  this  Law  School.  The  law  as  to  gifts,  inter 
vivos,  is  considered  in  chapter  seven,  of  this  book.  The  distinction 
between  a  sale  and  a  bailment  is  considered  in  chapter  eight  of  this 
book. 


CHAP.  I.]  CLAYTON    V.    LE   ROY.  123 


CHAPTER  I. 
A  BONA  FIDE  PURCHASE. 


CLAYTON   V.  LE  ROY. 

[1911.]     2  K.  B.     1031. 

A  WATCH  belonging  to  the  plaintiff  was  stolen,  and  was  afterwards 
sold  to  a  person  who  purchased  it  in  good  faith.  The  watch  eventu- 
ally came  into  the  hands  of  the  defendant,  and  the  plaintiff  de- 
manded it. 

ScRUTTON,  J,  By  the  common  law  of  England,  before  it  was 
modified  by  the  incorporation  of  a  rule  of  the  law  merchant,  a  per- 
son in  possession  of  goods  could  not  confer  on  another  either  by  sale 
or  pledge  any  better  title  to  the  goods  than  he  himself  had.  It  fol- 
lows that  if  the  goods  had  been  stolen,  even  the  twentieth  innocent 
purchaser  might  find  himself  deprived  of  them  by  the  original 
owner.  This  was  old  German  law  as  well,  but  its  strictness  put  a 
fetter  upon  sales  in  the  great  fairs  and  markets  in  which  much  of 
the  mercantile  business  of  the  time  was  transacted.  In  the  eleventh 
century  an  early  German  writer  says  that  ''merchants  assert  that 
sales  made  in  fairs,  whether  made  with  proper  legal  forms  or  not, 
should  be  binding  since  it  is  their  custom."  By  the  foreign  customs 
sometimes  the  real  owner  could  get  his  property  back  by  pacing  the 
merchant  who  had  bought  in  a  fair  the  price  he  had  paid  for  it;  some- 
times he  could  not  recover  it  at  all,  if  it  had  been  bought  in  an 
open  market.  In  England  by  the  common  law  as  stated  by  Bracton 
(f.  151),  if  the  person  in  possession  could  not  produce  the  person 
who  sold  to  him  to  warrant  the  sale,  yet,  if  he  bought  publicly  in  a 
fair  or  market,  though  he  lost  his  goods  on  claim  by  the  true  o^vTier, 
he  was  free  from  an  action  of  theft.  But  in  a  case  in  the  St.  Ives  fair 
rollof  1291  Mathilda  Frances  was  allowed  to  keep  stolen  malt  on 
proving  she  had  bought  it  in  good  faith  in  the  precincts  of  the  fair. 
Gradually,  by  steps  which  I  fear  are  now  untraceable,  the  rule  of 
the  law  merchant  protecting  sales  in  market  overt  became  incorpo- 
rated as  an  exception  on  the  strict  common  law  and  recognized  by 
the  King's  Courts;  and  now  s.  22  of  the  Sale  of  Goods  Act,  1893,  pro- 
vides that  "Where  goods  are  sold  in  market  overt  according  to  the 
usage  of  the  market,  the  buyer  acquires  a  good  title  to  the  goods, 
provided  he  buys  them  in  good  faith  and  without  notice  of  any 
defect  or  want  of  title  on  the  part  of  the  seller."    The  exception 


124  WHEELWRIGHT    V.    DEPEYSTER.  [CHAP.  I. 

generally  only  applies  to  a  public  legal  recognized  fair  or  market. 
Thus  in  Lee  v.  Bayes,  (1856)  18  C.  B.  599,  where  a  horse  was  sold 
by  public  auction  in  a  horse  repository  in  Southwark,  no  protection 
was  given  to  the  purchaser,  because  the  sale  was  not  in  an  open 
public  and  legally  constituted  market.  See  also  Marner  v.  Banks, 
(1867)  17  L.  T,  147.  But  local  customs  might  carry  the  protection 
further.  ''The  market  place,  or  spot  of  ground  set  apart  by  custom 
for  the  sale  of  particular  goods,  is  also  in  the  country  the  only 
market  overt:"  Blackstone,  Comm.,  vol.  2,  p.  449.  But  in  some 
towTis  their  customs  may  extend  the  protection  to  sales  outside  a 
recognized  market.  The  city  of  London  is  one  of  these  favoured 
localities. 

Note.  —  The  case  contains  a  discussion,  valuable  for  the  English 
lawyer,  as  to  what  amounts  to  a  sale  in  market  overt.  It  was  held  by 
ScRUTTON,  J.,  that  the  sale  in  question  had  not  been  in  market  overt. 

"Under  the  statutes  giving  restitution  of  stolen  goods  after  con- 
viction of  the  thief  on  indictment,  the  ownership  of  the  goods  is  ef- 
fectually re-vested  in  the  party  robbed  after  the  thief's  conviction, 
notwithstanding  any  intermediate  sale  in  market  overt."  Williams  on 
Personal  Property,  17th  ed.,  p.  15. 

A  bona  fide  purchaser  may  be  protected  by  the  provisions  of  a  stat- 
ute, irrespective  of  the  purchase  being  made  in  market  overt.  See  the 
Factors  Act,  Stat.  52  &  53  Vict.  c.  45. 


WHEELWRIGHT  v.   DEPEYSTER. 

1  Johns.  (N.Y.)  471.     1806 

Some  coffee,  belonging  to  American  citizens,  was  taken  by  stran- 
gers to  St.  Jago  de  Cuba,  and  there  sold  to  persons  who  purchased 
in  good  faith.  This  sale  was  held  not  to  divest  the  title  of  the  owners. 

Kent,  C.J.,  delivered  the  opinion  of  the  court." 

It  was  contended,  that  a  bona  fide  purchase  by  the  defendants  at 
St.  Jago,  for  a  valuable  consideration,  and  without  notice,  was  equiv- 
alent to  a  purchase  in  market-overt  under  the  English  law,  and  bound 
the  property  against  the  party  who  had  right.  As  no  local  law  is 
alleged,  or  proved,  this  question  must  be  governed  by  the  general 
principles  of  the  law  of  sales,  which  we  are  to  presume,  until  the  con- 
trary be  shown,  are  received  and  adopted  in  all  commercial  countries, 
at  St.  Jago,  as  well  as  at  New  York.  It  was  the  maxim  of  the  civil  law 
that  nemo  plus  juris  in  alium  transferre  potest  quam  ipse  habet ;  and 
this  plain  dictate  of  common  sense  is  considered  by  Pothier  and 
Erskine  as  a  fundamental  doctrine  of  the  contract  of  sale  in  France 
and  Scotland;  and  there  is  good  reason  to  conclude,  that  it  prevails 


CHAP.  I.]  MILLER  V.    RACE.  125 

in  most  of  the  countries  in  Europe,  which  have  felt  the  influence,  or 
obeyed  the  precepts  of  the  civil  law.  Lord  Kaimes,  in  his  Historical 
Law  Tracts,  tit.  "History  of  Property,"  vindicates  this  principle  in 
the  transfer  of  chattels,  and  observes,  that  when  notions  of  property 
were  slight,  a  bona  fide  purchase  of  stolen  goods  gave  a  good  title 
against  the  original  owner;  but  that  in  the  progress  of  society,  pro- 
perty acquired  such  stability  and  energj^  as  to  affect  the  subject 
wherever  found,  and  to  exclude  even  an  honest  purchaser,  when  the 
title  of  his  vendor  was  discovered  to  be  defective.  It  was  also  a  prin- 
ciple in  the  English  common  law,  that  a  sale  out  of  market-overt  did 
not  change  the  property  against  the  rightful  owner,  and  the  custom 
of  the  city  of  London,  which  forms  an  exception  to  the  general  rule, 
has  always  been  regarded  and  restricted  by  the  courts,  with  unusual 
jealousy  and  vigilance.  (Comyn's  Dig.  tit.  market  E.)  The  effect 
of  such  a  purchase  made  here  is  not  strictly  before  us,  but  I  have  no 
difficulty  in  saying,  that  I  know  of  no  usage  or  regulation  within  this 
state,  no  Saxon  institution  of  markets-overt,  which  controuls  or  inter- 
feres with  the  application  of  the  common  law.  The  purchase  by  the 
defendants  did  not,  therefore,  of  itself,  and  without  reference  to  the 
title  of  the  vendor,  give  them  an  indefeasible  right  to  the  goods  in 
question. 

Note.  —  See,  accord,  Robinson  v.  Haas,  40  Cal.  474;  Fawcett  v. 
Osborn,  32  111,  411,  424;  Dame  v.  Baldwin,  8  Mass.  518;  Ketchum  v. 
Brennan,  53  Miss.  596,  607;  Black  v.  Jones,  64  N.C.  318;  Roland 
V.  Gundy,  5  Ohio,  202;  Quinn  v.  Davis,  78  Pa.  15;  Heacock  v.  Walker, 
1  Tyler  (Vt.),  338;  Ventress  v.  Smith,  10  Pet.  (U.S.)  161,  175. 


MILLER  V.  RACE. 

1  Burr.  452.     1758. 

It  was  an  action  of  trover  against  the  defendant,  upon  a  bank- 
note, for  the  pajTnent  of  twenty-one  pounds  ten  shillings  to  one 
William  Finney,  or  bearer,  on  demand. 

The  cause  came  on  to  be  tried  before  Lord  Mansfield,  at  the 
sittings  in  Trinity  term  last  at  Guildhall,  London:  and  upon  the 
trial  it  appeared  that  William  Finney,  being  possessed  of  this  bank- 
note on  the  11th  of  December,  1756,  sent  it  by  the  general  post,  under 
cover,  directed  to  one  Bernard  Odenharty  at  Chipping  Norton  in 
Oxfordshire;  that  on  the  same  night,  the  mail  was  robbed,  and  the 
bank-note  in  question  (amongst  other  notes)  taken  and  carried 
away  by  the  robber;  that  this  bank-note,  on  the  12th  of  the  same 
December,  came  into  the  hands  and  possession  of  the  plaintiff,  for  a 
full  and  valuable  consideration,  and  in  the  usual  course  and  way  of 


126  MILLER    V.    RACE.  [CHAP.  I. 

his  business,  and  without  any  notice  or  knowledge  of  this  bank-note 
being  taken  out  of  the  mail. 

It  was  admitted  and  agreed,  that,  in  the  common  and  known 
course  of  trade,  bank-notes  are  paid  by  and  received  of  the  holder 
or  possessor  of  them,  as  cash;  and  that  in  the  usual  way  of  negoti- 
ating bank-notes,  they  pass  from  one  person  to  another  as  cash,  by 
delivery  only,  and  without  any  further  inquiry  or  evidence  of  title, 
than  what  arises  from  the  possession.  It  appeared,  that  Mr.  Finney, 
having  notice  of  this  robbery,  on  the  13th  of  December,  applied  to 
the  Bank  of  England  "to  stop  the  payment  of  this  note":  which 
was  ordered  accordingly,  upon  Mr.  Finney's  entering  into  proper 
security  "to  indemnify  the  Bank." 

Some  little  time  after  this,  the  plaintiff  applied  to  the  Bank 
for  the  payment  of  this  note;  and,  for  that  purpose,  delivered  the 
note  to  the  defendant,  who  is  a  clerk  in  the  Bank:  but  the  defend- 
ant refused  either  to  pay  the  note,  or  to  redeliver  it  to  the  plaintiff. 
Upon  which  this  action  was  brought  against  the  defendant. 

The  jury  found  a  verdict  for  the  plaintiff,  and  the  sum  of  21Z. 
10s.  damages;  subject  nevertheless  to  the  opinion  of  this  Court  upon 
this  question  —  "Whether,  under  the  circumstances  of  this  case,  the 
plaintiff  had  a  sufficient  property  in  this  bank-note  to  intitle  him  to 
recover  in  the  present  action?" 

Lord  Mansfield  now  delivered  the  resolution  of  the  Court. 

After  stating  the  case  at  large,  he  declared,  that  at  the  trial  he 
had  no  sort  of  doubt  but  that  this  action  was  well  brought,  and  would 
lie  against  the  defendant  in  the  present  case;  upon  the  general  course 
of  business,  and  from  the  consequences  to  trade  and  commerce: 
which  would  be  much  incommoded  by  a  contrary  determination. 

It  has  been  very  ingeniously  argued  by  Sir  Richard  Lloyd,  for  the 
defendant.  But  the  whole  fallacy  of  the  argument  turns  upon  com- 
paring bank-notes  to  what  they  do  not  resemble,  and  what  they 
ought  not  to  be  compared  to,  viz.  to  goods,  or  to  securities,  or  docu- 
ments for  debts. 

Now,  they  are  not  goods,  not  securities,  nor  documents  for  debts, 
nor  are  so  esteemed:  but  are  treated  as  money,  as  cash,  in  the  ordi- 
nary course  and  transaction  of  business,  by  the  general  consent  of 
mankind;  which  gives  them  the  credit  and  currency  of  money,  to  all 
intents  and  purposes.  They  are  as  much  money  as  guineas  them- 
selves are;  or  any  other  current  coin,  that  is  used  in  common  pay- 
ments, as  money  or  cash. 

They  pass  by  a  will,  which  bequeaths  all  the  testator's  money  or 
cash ;  and  are  never  considered  as  securities  for  money,  but  as  money 
itself.  Upon  Ld.  Ailesbury's  will,  900^  in  bank-notes  was  considered 
as  cash.  On  payment  of  them,  whenever  a  receipt  is  required,  the 
receipts  are  always  given  as  for  money,  not  as  for  securities  or 
notes. 


CHAP.  1.]  MILLER  V.    RACE.  127 

So,  on  bankruptcies,  they  cannot  be  followed  as  identical  and  dis- 
tinguishable from  money:  but  are  always  considered  as  money  or 
cash. 

'T  is  pity  that  reporters  sometimes  catch  at  quaint  expressions 
/  that  may  happen  to  be  dropped  at  the  bar  or  bench;  and  mistake 
their  meaning.  It  has  been  quaintly  said,  "that  the  reason  why  money 
cannot  be  followed  is,  because  it  has  no  ear-mark:"  but  this  is  not 
true.  The  true  reason  is,  upon  account  of  the  currency  of  it:  it  can- 
not be  recovered  after  it  has  passed  in  currency.  So  in  case  of  money 
stolen,  the  true  owmer  cannot  recover  it ;  after  it  has  been  paid  away 
fairly  and  honestly  upon  a  valuable  and  bona  fide  consideration :  but 
before  money  has  passed  in  currency,  an  action  may  be  brought  for 
the  money  itself.  There  was  a  case  in  1  G.  1,  at  the  sittings,  Thomas  v. 
Whip,  before  Ld.  Macclesfield;  which  was  an  action  upon  assump- 
sit, by  an  administrator  against  the  defendant,  for  money  had  and 
received  to  his  use.  The  defendant  was  nurse  to  the  intestate  during 
his  sickness;  and  being  alone,  conveyed  away  the  money.  And  Ld. 
Macclesfield  held  that  the  action  lay.  Now  this  must  be  esteemed 
a  finding  at  least. 

Apply  this  to  the  case  of  a  bank-note.  An  action  may  lie  against 
the  finder,  it  is  true  (and  it  is  not  at  all  denied);  but  not  after  it 
has  been  paid  away  in  currency.  And  this  point  has  been  determined 
even  in  the  infancy  of  bank-notes:  for  1  Salk.  126.  M.  10  W.  3.  at 
nisi  prius,  is  in  point.  And  Ld.  Ch.  J,  Holt  there  says,  that  it  is 
"by  reason  of  the  course  of  trade;  which  creates  a  property  in  the 
assignee  or  bearer."  (And  "the  bearer "  is  a  more  proper  expression 
than  assignee.) 

Here  an  inn-keeper  took  it,  bona  fide,  in  his  business  from  a  per- 
son who  made  the  appearance  of  a  gentleman.  Here  is  no  pretence 
or  suspicion  of  collusion  with  the  robber:  for  this  matter  was  strictly 
inquired  and  examined  into  at  the  trial ;  and  is  so  stated  in  the  case, 
"that  he  took  it  for  a  full  and  valuable  consideration,  in  the  usual 
course  of  business."  Indeed,  if  there  had  been  any  collusion,  or  any 
circumstances  of  unfair  dealing,  the  case  had  been  much  otherwise. 
If  it  had  been  a  note  for  1000?.  it  might  have  been  suspicious:  but 
this  was  a  small  note,  for  211.  10s.  only:  and  money  given  in  exchange 
for  it. 

Another  case  cited  was  a  loose  note  in  1  Ld.  Raym.  738,  ruled  by 
Ld.  Ch.  J.  Holt  at  Guildhall,  in  1698;  which  proves  nothing  for  the 
defendant's  side  of  the  question:  but  it  is  exactly  agreeable  to  what 
is  laid  down  by  my  Ld.  Ch.  J.  Holt,  in  the  case  I  have  just  men- 
tioned. The  action  did  not  lie  against  the  assignee  of  the  bank-bill; 
because  he  had  it  for  valuable  consideration.  ■  j 

In  that  case  he  had  it  from  the  person  who  found  it:  but  the  action 
did  not  lie  against  him,  because  he  took  it  in  the  course  of  currency; 
and  therefore  it  could  not  be  followed  in  his  hands.    It  never  shall 


128  MILLEB   V.    RACE.  [CHAP.  I. 

be  followed  into  the  hands  of  a  person  who  bona  fide  took  it  in  the 
course  of  currency,  and  in  the  way  of  his  business. 

The  case  of  Ford  V.  Hopkins  was  also  cited:  which  was  in  Hil,  12 
W.  3.  coram  HOLT, Ch.  J., at  nisi  prius,  at  Guildhall;  and  was  an 
action  of  trover  for  million-lottery  tickets.  But  this  must  be  a  very 
incorrect  report  of  that  case ;  it  is  impossible  that  it  can  be  a  true 
representation  of  what  Ld.  Ch.  J.  Holt  said.  It  represents  him  as 
speaking  of  bank-notes,  exchequer-notes,  and  million-lottery  tickets, 
as  like  to  each  other.  Now  no  two  things  can  be  more  unlike  to 
each  other  than  a  lottery-ticket  and  a  bank-note.  Lottery-tickets 
are  identical  and  specific:  specific  actions  lie  for  them.  They  may 
prove  extremely  unequal  in  value:  one  may  be  a  prize;  another  a 
blank.  Land  is  not  more  specific  than  lottery-tickets  are.  It  is  there 
said,  "that  the  delivery  of  the  plaintiff's  tickets  to  the  defendant, 
as  that  case  was,  was  no  change  of  property."  And  most  clearly  it 
was  no  change  of  the  property:  so  far  the  case  is  right.  But  it  is  here 
urged  as  a  proof  "that  the  true  owner  may  follow  a  stolen  bank- 
note, into  what  hands  soever  it  shall  come." 

Now  the  whole  of  that  case  turns  upon  the  throwing  in  bank-notes, 
as  being  like  to  lottery-tickets. 

But  Ld.  Ch.  J.  Holt  could  never  say  "that  an  action  would 
lie  against  the  person  who,  for  a  valuable  consideration,  had  re- 
ceived a  bank-note  which  had  been  stolen  or  lost,  and  bona  fide  paid 
to  him:"  even  though  the  action  was  brought  by  the  true  owner: 
because  he  had  determined  otherwise,  but  two  years  before;  and 
because  bank-notes  are  not  like  lottery-tickets,  but  money. 

The  person  who  took  down  this  case,  certainly  misunderstood 
Lord  Ch.  J.  Holt,  or  mistook  his  reasons.  For  this  reasoning  would 
prove  (if  it  was  true,  as  the  reporter  represents  it),  that  if  a  man 
paid  to  a  goldsmith  500Z.  in  bank-notes,  the  goldsmith  could  never 
pay  them  away. 

A  bank-note  is  constantly  and  universally,  both  at  home  and 
abroad,  treated  as  money,  as  cash;  and  paid  and  received  as  cash: 
and  it  is  necessary,  for  the  purposes  of  commerce,  that  their  currency 
should  be  established  and  secured. 

There  was  a  case  in  the  Court  of  Chancery,  on  some  of  Mr.  Child's 
notes,  payable  to  the  person  to  whom  they  were  given,  or  bearer. 
The  notes  had  been  lost  or  destroyed  many  years.  Mr.  Child  was 
ready  to  pay  them  to  the  widow  and  administratrix  of  the  person 
to  whom  they  were  made  payable;  upon  her  giving  bond,  with  two 
responsible  sureties  (as  is  the  custom  in  such  cases),  to  indemnify 
him  against  the  bearer,  if  the  notes  should  ever  be  demanded.  The 
administratrix  brought  a  bill;  which  was  dismissed,  because  she 
either  could  not,  or  would  not,  give  the  security  required.  No  dis- 
pute ought  to  be  made  with  the  bearer  of  a  cash-note;  in  regard  to 
commerce,  and  for  the  sake  of  the  credit  of  these  notes:  though 


CHAP,  ij  MILLER    V.    RACE.  129 

it  may  be  both  reasonable  and  customary,,  to  stay  the  payment,  till 
inquiry  can  be  made,  whether  the  bearer  of  the  note  came  by  it 
fairly  or  not. 

Lord  Mansfield  declared  that  the  Court  were  all  of  the  same 
opinion  for  the  plaintiff;  and  that  Mr.  Just.  Wilmot  concurred. 
^N        Rule  —  that  the  postea  be  delivered  to  the  plaintiff. 

Note.  —  The  law  in  the  United  States  is  in  accord. 

The  same  principle  governs  transactions  in  promissory  notes,  bills 
of  exchange,  and  checks,  indorsed  in  blank  or  payable  to  bearer,  and 
also  bonds,  payable  to  bearer. 

In  Moss  V.  Hancock,  [1899]  2  Q.  B.  Ill,  a  coin,  which  was  current 
coin  of  the  realm,  was  stolen  and  sold  as  a  curiosity  to  a  person  who 
purchased  it  in  good  faith.  The  owner  was  held  entitled  to  it,  after 
the  conviction  of  the  thief. 

NOTE. 

Although  a  bona  fide  purchase  will  not  supply  legal  defects 
(with  the  qualifications  showTi  by  the  cases  given  above),  it  is  fun- 
damental that  it  will  cut  off  equitable  rights. 


130  GRIFFn'H    V.    FOWLER.  [CHAP.  li 


CHAPTER  II. 
A  PURCHASE  AT  A  SALE  IN  JUDICIAL  PROCEEDINGS. 


GRIFFITH   V.   FOWLER. 

18  Vt.  390.     1846. 

Trespass  for  taking  a  shearing  machine.  The  case  was  submitted 
upon  a  statement  of  facts,  agreed  to  by  the  parties,  from  which  it  ap- 
peared, that  in  1836  the  defendant,  being  the  owner  of  the  machine 
in  question,  lent  it  to  one  Freeman,  to  use  in  his  business  as  a 
clothier,  who  was  to  pay  a  yearly  rent  therefor,  and  in  whose  pos- 
session it  remained  until  the  year  1841,  when  it  was  sold  at  sheriff's 
sale,  on  execution,  as  the  property  of  Freeman,  and  one  Richmond 
became  the  purchaser;  that  Richmond,  in  January,  1842,  sold  the 
machine  to  the  plaintiff,  who  at  the  same  time  purchased  of  Freeman 
the  building,  in  which  the  machine  was  situated,  and  took  posses- 
sion thereof;  and  that  the  defendant,  in  February,  1842,  took  the 
machine  from  the  plaintiff's  possession,  claiming  it  as  his  property. 
The  value  of  the  machine  was  admitted  to  be  fifty  dollars. 

Upon  these  facts  the  county  court  —  Hebard,  J.,  presiding — 
rendered  judgment  for  the  defendant.   Exceptions  by  plaintiff. 

The  opinion  of  the  court  was  delivered  by 

Redfield,  J.  The  only  question  reserved  in  this  case  is,  whether 
a  title  to  personal  property,  acquired  by  purchase  at  sheriff's  sale,  is 
absolute  and  indefeasible  against  all  the  world,  or  -vNiiether  such  sale 
only  conveys  the  title  of  the  debtor. 

There  has  long  been  an  opinion,  very  general,  I  think,  in  this 
state,  not  only  among  the  profession,  but  the  people,  that  a  purchaser 
at  sheriff's  sale  acquires  a  good  title,  without  reference  to  that  of 
the  debtor;  that  such  a  sale,  like  one  in  market  overt  in  England, 
conveys  an  absolute  title.  But,  upon  examination,  I  am  satisfied 
that  this  opinion  acts  upon  no  good  basis. 

So  far  as  can  now  be  ascertained,  this  opinion,  in  this  state,  rests 
mainly  upon  a  dictum  in  the  case  of  Heacock  v.  Walker,  1  Tyl.  338. 
There  are  many  reasons  why  this  dictum  should  not  be  regarded, 
if  the  matter  were  strictly  res  Integra.  It  was  a  declaration  of  the 
chief  justice  in  charging  the  jury.  Cases  were  then  tried  by  the 
jury  at  the  bar  of  this  court,  as  matter  of  right,  and  in  course,  and 
before  the  law  of  the  case  had  been  discussed  and  settled  by  the 
court.     In  all  these  respects  these  trials  differed  essentially  from 


I 


«3HAP.  II.]  GRIFFITH    V.    FOWLER.  13i 

jury  trials  at  the  bar  of  the  higher  courts  in  Westminster  Hall. 
Such  trials,  there,  being  only  matter  of  favor,  granted  in  the  most 
important  cases,  and  after  the  law  of  the  cases  has  been  fully  dis- 
cussed, and  settled  by  the  court. 

The  law  given  to  the  jury,  in  the  two  cases,  will  of  course  partake 
something  of  the  character  of  the  respective  form  and  deliberation 
of  the  trials.  Under  our  former  practice,  law  laid  do^\^l  in  the 
course  of  a  jury  trial,  unless  when  questions  were  reserved  and 
farther  discussed  upon  motions  for  new  trials,  was  not  much  es- 
teemed, even  when  it  was  upon  the  very  point  in  dispute.  But  es- 
pecially, the  dicta  of  the  judge,  who  tried  the  case,  and  who  must, 
of  necessity,  somewhat  amplify  the  bare  text  of  the  law,  in  order  to 
show  the  jury  the  reason  upon  which  it  was  based,  could  not  be 
esteemed,  as  anything  more  than  the  hastily  formed  opinion  of  the 
judge  —  mere  argument,  to  satisfy  some  possible,  or  apprehended, 
doubt  of  the  jury  in  regard  to  the  soundness  of  the  main  proposition 
laid  down.  Such  was  the  dictum  referred  to.  That  which  was  said 
of  Chief  Justice  Tilghman,  of  Pennsj^vania,  is  undoubtedly  good 
praise,  when  said  of  any  judge:  —  "He  made  no  dicta,  and  he  re- 
garded none."  There  are  sufficient  reasons  why  the  dictum  should 
not  be  regarded,  if  the  thing  were  new.  And  we  do  not  esteem  the 
long  standing  of  the  dictum  of  any  importance,  unless  it  can  be 
shown,  that  it  has  thus  grown  into  a  generally  received  and  estab- 
lished law  or  usage;  which,  we  think,  is  not  the  case  in  regard  to 
this.  For  this  court  has,  within  the  last  ten  years,  repeatedly  held, 
that  a  sheriff's  sale  was  of  no  validity  to  pass  any  but  the  title  of 
the  debtor,  ivhen  no  actual  delivery  of  the  thing  sold  was  made  by 
the  sheriff,  at  the  time  of  sale.  Austin  v.  Tilden  et  al.,  14  Vt.  325; 
Boynton  v.  Kelsey,  Caledonia  County,  1836.  S.  P.,  Lamoille  County, 
1841.  Since  the  first  of  these  cases  was  decided,  the  main  question 
involved  in  this  case  has  been  considered  doubtful  in  this  state,  and 
we  now  feel  at  liberty  to  decide  it,  as  we  think  the  law  should  be,  that 
is,  as  it  is  settled  at  common  law. 

But  the  idea^  that  some  analogy  existed  between  a  sheriff's  sale 
and  a  sale  in  market  overt  is  certainly  not  peculiar  to  the  late  Chief 
Justice  Tyler.  This  opinion  seems  at  one  time  to  have  prevailed 
in  Westminster  Hall,  to  some  extent,  at  least;  for  in  the  case  of 
Farrant  v.  Thompson,  5  B.  &  A.  826  [7  E.  C.  L.  272],  which  was 
decided  in  the  King's  Bench  in  1822,  nearly  twenty  years  later  than 
that  of  Heacock  v.  Walker,  one  of  the  points  raised  in  the  trial  of 
the  case  before  Chief  Justice  Abbott  was,  that  the  title  of  the  pur- 
chaser, being  acquired  at  sheriff's  sale,  was  good  against  all  the 
world,  the  same  as  that  of  a  purchaser  in  market  overt.  This  point 
was  overruled,  and  a  verdict  passed  for  the  plaintiff,  but  with  leave  to 
move  to  set  it  aside,  and  to  enter  a  nonsuit,  upon  this  same  ground, 
with  one  other.  This  point  was   expressly  argued  by  Sir   James 


132  GRIFFITH    V.    FOWLER.  [CHAP.  II. 

Scarlet,  —  who  was  certainly  one  of  the  most  eminent  counsel,  and 
one  of  the  most  discriminating  men  of  modern  times,  —  in  the 
King's  Bench,  and  was  decided  by  the  court  not  to  be  well  taken. 
Since  that  time  I  do  not  find  that  the  question  has  been  raised 
there. 

It  seems  to  be  considered  in  Massachusetts,  and  in  New  York, 
and  in  many  of  the  other  states,  that  nothing,  analogous  to  markets 
overt  in  England,  exists  in  this  country.  Dame  v.  Baldwin,  8  Mass. 
518.  Wheelwright  v.  DePeyster,  1  Johns.  480.  2  Kent,  324,  and 
cases  there  cited.  Nothing  of  that  kind,  surely,  exists  in  this  state, 
unless  it  be  a  sheriff's  sale.  And  if  the  practice  of  holding  sales  in 
market  overt  conclusive  upon  the  title  existed  in  any  of  the  states, 
it  would  be  readily  known.  I  conclude,  therefore,  that  Chancellor 
Kent  is  well  founded  in  his  opinion,  when  he  aJBfirms  that  the  law  of 
markets  overt  does  not  exist  in  this  country.  lb. 

It  seems  probable  to  me,  that  the  idea  of  the  conclusiveness  of  a 
sheriff's  sale  upon  the  title  is  derived  from  the  effect  of  sales  under 
condemnations  in  the  exchequer,  for  violations  of  the  excise  or 
revenue  laws,  and  sales  in  prize  cases,  in  the  admiralty  courts, 
either  provisionally,  or  after  condemnation.  But  these  cases  bear 
but  a  slight  analogy  to  sheriff's  sales  in  this  country  or  in  England. 
Those  sales  are  strictly  judicial,  and  are  merely  carrying  into  speci- 
fic execution  a  decree  of  the  court  in  rem,  which,  by  universal  consent, 
binds  the  whole  world. 

Something  very  similar  to  this  exists,  in  practice,  in  those  coun- 
tries which  are  governed  by  the  civil  law;  which  is  the  fact  in  one 
of  tne  American  states,  and  in  the  provinces  of  Canada,  and  in  most, 
if  not  all,  the  continental  states  of  Europe.  The  property,  or  what 
is  claimed  to  be  the  property,  of  the  debtor  is  seized  and  libelled 
for  sale,  and  a  general  monition  served,  notifying  all  having  adver- 
sary claims  to  interpose  them  before  the  court,  by  a  certain  day 
limited.  In  this  respect  the  proceedings  are  similar  to  proceedings  in 
prize  courts,  and  in  all  other  courts  proceeding  in  rem.  If  no  claim 
is  interposed,  the  property  is  condemned,  by  default,  and  sold;  if 
such  claims  are  made,  they  are  contested,  and  settled  by  the  judg- 
ment of  the  court,  and  the  rights  of  property  in  the  thing  are  thus 
conclusively  settled  before  the  sale. 

But  with  us  nothing  of  this  character  exists  in  regard  to  sheriff's 
sales.  Even  the  right  to  summon  a  jury  to  inquire  into  conflicting 
claims  de  bene  esse,  as  it  is  called  in  England,  and  in  the  American 
states,  where  it  exists,  has  never  been  resorted  to  in  this  state.  And 
in  England,  where  such  a  proceeding  is  common,  —  Impey,  153; 
Dalton,  146;  Farr  et  al.  v.  Newmanet  al.,  4  T.  R.  621,  - —  it  does  not 
avail  the  sheriff,  even,  except  to  excuse  him  from  exemplary  dam- 
ages. La«fcm«v.£Jawer,  2  H.Bl.  437;  G/assop  v.  Poo/e,  3  M.  &  S.  175. 
It  is  plain,  then,  that  a  sheriff's  sale  is  not  a  judicial  sale.  If  it  were, 


CHAP.  II.]  GRIFFITH    V.    FOWLER.  133 

no  action  could  be  brought  against  the  sheriff,  for  selling  upon  exe- 
lution  property  not  belonging  to  the  debtor. 

With  us  an  execution  is  defined  to  be  the  putting  one  in  possession 
of  that  which  he  has  already  acquired  by  judgment  of  law.  Co. 
Lit.  154  a.  (Thomas'  Ed.  405.)  But  the  judgment  is  of  a  sum  in 
gross  "to  be  le\aed  of  the  goods  and  chattels  of  the  debtor,"  which 
the  sheriff  is  to  find  at  his  peril.  The  sale  upon  the  execution  is  only 
a  transfer,  by  operation  of  law,  of  what  the  debtor  might  himself 
transfer.  It  is  a  principle  of  the  law  of  property,  as  old  as  the  Insti- 
tutes of  Justinian,  Ut  nemo  plits  juris  in  alium  transferre  potest,  quam 
ipse  habet. 

The  comparison  of  sheriff's  sales  to  the  sale  of  goods  lost,  or  es- 
trays,  in  pursuance  of  statutory  provisions,  which  exist  in  many  of 
the  states,  does  not,  in  my  opinion,  at  all  hold  good.  Those  sales  un- 
doubtedly transfer  the  title  to  the  thing,  as  against  all  claims  of  an- 
tecedent property  in  any  one,  if  the  statutory  provisions  are  strictly 
complied  vdth;  but  that  is  in  the  nature  of  a  forfeiture,  and  is  strictly 
a  proceeding  in  rem,  wherein  the  finder  of  the  lost  goods  is  consti- 
tuted the  tribunal  of  condemnation. 

There  being,  then,  no  ground,  upon  which  we  think  we  shall  be 
justified  in  gi\'ing  to  a  sheriff's  sale  the  effect  to  convey  to  the  pur- 
chaser any  greater  title  than  that  of  the  debtor,  the  judgment  of 
the  court  below  is  affirmed. 


134  CHAPIN    V.    FREELAND.  [CHAP.  HI. 


CHAPTER  III. 

STATUTES  OF  LIMITATIONS. 


CHAPIN  V.  FREELAND. 

142  Mass.  383.     1886. 

Replevin  of  two  counters.  Writ  dated  November  14,  1881. 
Trial  in  the  Superior  Court,  without  a  jury,  before  Blodgett,  J., 
who  allowed  a  bill  of  exceptions,  in  substance  as  follows :  — 

There  was  evidence  tending  to  show,  and  the  judge  found,  that, 
in  1867,  one  Daniel  Warner  built  a  building  upon  his  land  in 
Oxford,  and  fitted  up  the  same  ^dth  shelving  and  counters,  and 
designed  the  same  for  use  as  a  store  for  the  sale  of  general  merchan- 
dise; that  the  counters  in  controversy  were  put  into  the  store  by 
him,  and  were  arranged  for  convenient  use  therein;  that  the  same 
were  nailed  to  the  floor,  and  were  used  in  said  building;  that  on 
January  2,  1871,  Warner  mortgaged  the  premises  to  Alexander  De 
Witt;  that  DeWitt  died  in  1879,  and  Charles  A.  Angell  and  William 
Newton  were  appointed  executors  of  his  will;  that  in  April,  1879, 
said  executors  foreclosed  said  mortgage  by  sale,  under  the  power 
contained  therein,  and  became  the  purchasers  of  the  premises;  that, 
soon  after  such  sale,  Warner  removed  the  counters  from  the  build- 
ing, and  the  executors  regained  possession  of  them,  and  put  them 
upon  the  premises,  but  did  not  nail  or  fasten  them  to  the  premises; 
that  afterwards  the  executors  sold  the  premises  to  the  plaintiffs,  but 
did  not  make  mention  of  the  counters  in  their  deed,  nor  speak  of 
them  in  the  sale;  and  that  the  defendant  took  the  counters  from  the 
premises  occupied  by  the  plaintiffs  in  1881. 

The  defendant  offered  evidence  tending  to  show,  and  the  judge 
found,  that  she  purchased  these  counters,  with  two  others,  in  1861; 
that  they  were  built  in  Worcester  and  sent  to  her  complete  at  Ox- 
ford, and  placed  in  her  store;  that  they  were  heavy  counters  with 
black-walnut  tops  and  heavy  bases,  with  panelled  front,  supported 
by  standards  standing  upon  the  floor,  and  were  not  fastened  to  the 
floor,  but  were  kept  in  position  by  their  o^-n  weight,  and  were  used 
there  until  some  time  in  1866,  when,  the  store  being  then  occupied 
by  a  tenant,  they  were  set  on  one  side  as  not  being  adapted  to  the 
business  for  which  such  store  was  then  used,  and  finally,  with  the 
knowledge  and  consent  of  DeWitt,  were  moved  out  of  the  building 
on  to  the  street,  and  placed  one  upon  the  other;  that  Warner  took  the 


Chap,  hi.]  chapin  v.  freeland.  135 

counters  from  their  place  in  the  street,  and  put  them  in  his  store,  as 
aforesaid;  that  there  were  two  mortgages  on  the  defendant's  store 
premises  given  some  time  previously  to  November  26,  1866,  which 
were  assigned  to  DeWitt  on  that  day ;  that  from  that  date,  by  agree- 
ment with  the  defendant,  DeWitt,  who  was  the  defendant's  brother, 
had  charge  of  said  estate  and  of  said  counters  for  the  defendant; 
that  she  never  authorized  him,  or  any  other  person,  to  dispose  of  the 
counters,  and  never  herself  parted  with  her  property  in  them;  that, 
soon  after  the  counters  were  removed  from  her  store,  she  missed 
them,  and  made  inquiries  for  them,  but  failed  to  find  them ;  and  that, 
when  she  learned  that  they  were  upon  the  plaintiffs'  premises,  she 
took  them  away. 

There  was  no  other  evidence  than  as  above  stated  as  to  the  means 
of  the  defendant  of  obtaining  information  as  to  where  the  coimters 
were  after  they  were  taken  from  her  store,  or  as  to  any  conceal- 
ment of  the  taking  of  the  counters  by  Warner.  It  was  in  evidence, 
however,  that  the  defendant,  after  1861,  resided  some  of  the  time  in 
Oxford  and  some  of  the  time  in  Sutton. 

There  was  no  evidence,  except  as  before  stated,  tending  to  show 
what  interest,  if  any,  Warner  claimed  to  have  in  the  counters  at  the 
time  they  came  into  his  possession,  or  at  any  time  thereafter;  and 
there  was  no  other  material  evidence  in  the  case  applying  to  the  rul- 
ings made  or  asked  for  at  the  trial. 

The  plaintiffs  asked  the  judge  to  rule  as  follows:  "1.  Upon  the 
evidence,  the  counters,  though  attached  to  the  store  by  one  who  had 
no  title  to  them,  became  fixtures  and  a  part  of  the  realty,  and  passed 
to  the  mortgagee,  and  to  the  purchasers  at  the  foreclosure  sale,  and 
came  rightfully  into  the  possession  of  the  plaintiffs  when  they  pur- 
chased the  premises,  as  belonging  thereto,  though  not  then  nailed  to 
the  building,  2.  The  defendant  had  lost  the  right  to  take  the  count- 
ers, if  Warner  had  no  right  or  title  to  them  when  he  so  took  and  at- 
tached them  to  the  store  building,  such  taking  being  a  tort,  and,  as 
a  cause  of  action,  barred  by  the  statute  of  limitations  long  before 
the  defendant  removed  them  in  1881,  and  therefore  having  no  right 
to  recover  them,  and  nothing  appearing  sufficient  to  take  the  case 
out  of  the  statute.  3.  Upon  the  evidence  and  facts,  as  before  stated, 
the  plaintiffs,  as  matter  of  law,  were  entitled  to  maintain  their  ac- 
tion, and  the  facts  in  the  case  would  not  warrant  a  finding  for  the 
defendant." 

The  judge  declined  to  rule  as  requested;  and  found  for  the  defend- 
ant.  The  plaintiffs  alleged  exceptions. 

Holmes,  J.  This  is  an  action  of  replevin  for  two  counters.  There 
was  evidence  that  they  belonged  to  the  defendant  in  1867,  when 
one  Warner  built  a  shop,  put  the  counters  in,  nailed  them  to  the 
floor,  and  afterwards,  on  January  2,  1871,  mortgaged  the  premises 
to  one  DeWitt.   In  April,  1879,  DeWitt's  executors  foreclosed,  and 


136  CHAPIN    V.    FREELAND.  [CHAP.  III. 

sold  the  premises  to  the  plaintiffs.  The  defendant  took  the  counten 
from  the  plaintiffs'  possession  in  1881.  The  court  found  for  the  de- 
fendant. Considering  the  bill  of  exceptions  as  a  whole,  we  do  not 
understand  this  general  finding  to  have  gone  on  the  ground  either  of 
a  special  finding  that  the  counters  remained  chattels  for  all  purposes, 
and  were  not  covered  by  the  mortgage,  Carpenter  v.  Walker,  140 
Mass.  416,  or  that  there  was  a  fraudulent  concealment  of  the  cause 
of  action,  within  the  Gen.  Sts.  c.  155,  §  12  (Pub.  Sts.  c.  197,  §  14). 
But  we  understand  the  court  to  have  ruled  or  assumed  that,  al- 
though the  statute  should  have  run  in  favor  of  Warner  or  DeWitt 
before  the  transfer  to  the  plamtiffs,  that  circumstance  would  not 
prevent  the  defendant  from  taking  possession  if  she  could,  or  en- 
title the  plaintiffs  to  sue  her  for  doing  so,  if  she  was  the  original 
owner. 

A  majority  of  the  court  are  of  opinion  that  this  is  not  the  law, 
and  that  there  must  be  a  new  trial.  We  do  not  forget  all  that  has  been 
said  and  decided  as  to  the  statute  of  limitations  going  only  to  the 
remedy,  especially  in  cases  of  contract.  We  do  not  even  find  it  neces- 
sary to  express  an  opinion  as  to  what  would  be  the  effect  of  a  statute 
like  ours,  if  a  chattel,  after  having  been  held  adversely  for  six  years, 
were  taken  into  another  jurisdiction  by  the  originally  wrongful  pos- 
sessor, although  all  the  decisions  and  dicta,  so  far  as  we  know,  agree 
that  the  title  would  be  deemed  to  have  passed.  Cockfield  v.  Hudson, 
1  Brev.  311.  Howell  v.  Hair,  15  Ala.  194.  Jones  v.  Jones,  18  Ala. 
248,  253.  Clark  v.  Slaughter,  34  Miss.  65.  JVinhurn  v.  Cochran,  9 
Tex.  123.  Preston  v.  Briggs,  16  Vt.  124, 130.  Baker  v.  Chase,  55  N.H. 
61,  63.  Campbell  v.  Holt,  115  U.S.  620,  623.  What  we  do  decide  is, 
that,  where  the  statute  would  be  a  bar  to  a  direct  proceeding  by  the 
original  owner,  it  cannot  be  defeated  by  indirection  wdthin  the  juris- 
diction where  it  is  law.  If  he  cannot  replevy,  he  cannot  take  •s\ith  his 
own  hand.  A  title  which  will  not  sustain  a  declaration  will  not  sus- 
tain a  plea. 

It  is  true  that  the  statute,  in  terms,  only  limits  the  bringing  of  an 
action.  But  whatever  importance  may  be  attached  to  that  ancient 
form  of  words,  the  principle  we  lay  down  seems  to  us  a  necessary 
consequence  of  the  enactment.  And  a  similar  doctrine  has  been  ap- 
plied to  the  statute  of  frauds.  Carrington  v.  Roots,  2  M.  &  W.  248. 
See  King  v.  Welcome,  5  Gray,  41. 

As  we  understand  the  statutory  period  to  have  run  before  the 
plaintiffs  acquired  the  counters,  we  do  not  deem  it  necessary  to  con- 
sider what  would  be  the  law  if  the  plaintiffs  had  purchased  or  taken 
the  counters,  within  six  years  of  the  original  conversion,  from  the 
person  who  first  converted  them,  and  the  defendant  had  taken  them 
after  the  action  against  the  first  taker  had  been  barred,  but  within 
six  years  of  the  plaintiffs'  acquiring  them.  We  regard  a  purchaser 
from  one  against  whom  the  remedy  is  already  barred  as  entitled  to 


CHAP.  III.]  CHAPIN   V.    FREELAND.  137 

stand  in  as  good  a  position  as  his  vendor.  Whether  a  second  wrong- 
ful taker  would  stand  differently,  because  not  privy  in  title,  we  need 
not  discuss.  See  Leonard  v.  Leonard,  7  Allen,  211 ;  Sawyer  v.  Kendall, 
10  Cush.  241;  Norcross  v.  James,  140  Mass.  188, 189;  Co.  Lit.  114  b, 
121  b. 

Exceptions  sustained. 

Field,  J.  I  am  unable  to  assent  to  the  opinion  of  the  court.  As 
the  case  was  tried  without  a  jury,  and  the  court  found  generally  for 
the  defendant,  the  only  questions  of  law  are  those  raised  by  the  plain- 
tiffs' requests  for  rulings,  which  were  refused.  The  plaintiffs  must 
prevail,  if  at  all,  upon  their  own  title  or  right  of  possession.  There 
was  evidence  that  the  defendant  purchased  the  counters  in  1861, 
and  placed  them  in  her  store,  where  they  were  used  until  some  time 
in  1866,  when,  with  the  knowledge  and  consent  of  DeWitt,  the  de- 
fendant's brother,  they  were  moved  out  of  the  building  to  the  street; 
that  DeWitt,  from  November  26,  1866,  held  a  mortgage  upon  the 
defendant's  "store  premises,"  and  "from  that  date,  by  agreement 
with  the  defendant,  had  charge  of  said  estate  and  of  said  count- 
ers"; that,  in  1867,  Daniel  Warner  took  the  counters,  without  the 
defendant's  knowledge  or  authority,  and  put  them  into  his  store, 
and  nailed  them  to  the  floor,  and  mortgaged  his  premises  to  DeWitt 
on  January  2,  1871;  that  DeWitt  died  in  1879,  and  this  mortgage 
was  foreclosed  by  a  sale  made  by  the  executors  of  DeWitt's  estate  to 
themselves  in  April,  1879,  and  they  afterwards  "sold  the  premises 
to  the  plaintiffs,"  not  mentioning  the  counters  in  their  deed;  that 
the  defendant,  "  soon  after  the  counters  were  removed  from  her  store, 
missed  them,  and  made  inquiries  for  them,  but  failed  to  find  them; 
and  that,  when  she  learned  that  they  were  upon  the  plaintiffs'  pre- 
mises, she  took  them  away,"  in  1881,  and  retained  possession  until 
the  plaintiffs  replevied  them.  "There  was  no  evidence,  except  as 
before  stated  [in  the  exceptions],  tending  to  show  what  interest,  if 
any,  Warner  claimed  to  have  in  the  counters  at  the  time  they  came 
into  his  possession,  or  at  any  time  thereafter."  From  the  time 
Warner  took  the  counters  until  he  mortgaged  his  premises  to  De 
Witt,  six  years  had  not  expired;  but,  if  it  be  assumed  that  Warner 
remained  in  possession  until  the  mortgage  given  by  him  was  fore- 
closed by  a  sale,  he  held  possession  more  than  six  years.  The  pos- 
session of  the  plaintiffs  could  not  have  been  for  a  longer  time  than 
about  two  years.  If  DeWitt  was  in  possession  from  the  date  of  the 
mortgage  to  him  until  his  death,  this  was  more  than  six  years;  but 
there  was  evidence  that  he  was  the  agent  of  the  defendant  to  take 
charge  of  the  counters.  The  terms  of  the  mortgage  and  conveyance 
under  which  the  plaintiffs  claim  are  not  set  out,  but  it  has  been 
assumed  that  they  conveyed  whatever  title,  if  any,  Warner  had  in 
the  counters.    It  is  manifest  that,  as  between  landlord  and  tenant, 


138  CHAPIN    V.    FREELAND.  [CHAP.  III. 

these  counters  would  have  been  either  furniture  or  trade  fixtures, 
and  that,  if  they  were  taken  by  Warner  and  affixed  to  his  store  tor- 
tiously,  Avithout  the  consent  of  the  defendant,  she  could  have  retaken 
them.  Kimball  v.  Grand  Lodge  of  Masons,  131  Mass.  59;  Huhhell 
V.  East  Cambridge  Savings  Bank,  132  Mass.  447;  Guthrie  v.  Jones, 
108  Mass.  191. 

The  rule  that  the  title  of  personal  property  is  lost  by  a  wrongful 
conversion  of  it  into  some  other  species  of  property,  or  by  making  it 
a  part  of  real  estate,  has  its  foundation  in  the  impossibility  or  imprac- 
ticability of  tracing  the  property,  or  of  severing  it  from  the  real  es- 
tate; and  when  personal  chattels  are,  without  the  consent  of  the 
owner,  and  without  right,  taken  by  another  and  affixed  to  real  prop- 
erty, the  title  of  the  owner  is  not  lost,  unless  the  identity  of  the 
chattels  has  been  destroyed,  or  they  have  been  so  affixed  to  the  real 
property  that  it  is  impracticable  to  sever  them.  See  Wetherbee  v. 
Green,  22  Mich.  311;  Jewett  v.  Dringer,  3  Stew.  (N.J.)  291.  I  think 
that  the  first  request,  therefore,  ought  not  to  have  been  given. 

As  the  plaintiffs  first  took  possession  of  the  counters  as  their  o\^^l 
some  time  after  the  foreclosure  of  the  mortgage  in  1879,  the  statute 
of  limitations  would  have  been  no  defence  to  them  if  the  defendant 
had  brought  trover  against  them  in  1881,  when  she  took  possession 
of  the  counters;  their  only  defence  would  have  been  title  in  them- 
selves derived  from  their  vendors,  and  this  title  rests  ultimately 
upon  the  possession  of  Warner.  The  second  request,  as  applicable  to 
the  case,  is  in  effect  that,  if  Warner  took  the  counters  tortiously,  and 
kept  them  attached  to  his  building  more  than  six  years,  the  defend- 
ant lost  her  right  of  property  in  the  counters.  It  is  not  stated  in  the 
request,  that  Warner's  possession,  to  effect  a  change  of  title,  must 
have  been  either  known  to  the  defendant  or  open  and  notorious,  and 
must  have  been  under  a  claim  of  right;  and  that  his  possession  was  of 
this  character  is  not  necessarily  to  be  inferred  from  the  evidence. 
The  effect  of  the  statute  of  limitations  of  real  actions  upon  the 
acquisition  of  title  to  real  property  is  carefully  discussed  in  Langdell 
on  Eq.  PI.  §§  119  &  seq.  Our  statute  of  limitations  of  real  actions 
provides  that  "no  person  shall  conmience  an  action  for  the  re- 
covery of  lands,  nor  make  an  entry  thereon,  unless  within  twenty 
years  after  the  right  to  bring  such  action  or  to  make  such  entry  first 
accrued,  or  within  twenty  years  after  he,  or  those  from,  by,  or  under 
whom  he  claims,  have  been  seised  or  possessed  of  the  premises,  ex- 
cept as  is  hereinafter  provided."  Pub.  Sts.  c.  196,  §  1.  Gen.  Sts.  c. 
154,  §  1.  Rev.  Sts.  c.  119,  §  1.  Sts,  1786,  c.  13;  1807,  c.  75.  Conmiis- 
sioners'  Notes  to  the  Rev.  Sts.  c.  119.  As  writs  of  right  and  of  forme- 
don,  and  all  writs  of  entry  except  those  provided  by  the  Pub.  Sts. 
c.  134,  were  abolished  by  the  Rev.  Sts.  c.  101,  §  51,  it  follows  that, 
^dth  certain  exceptions  not  necessary  to  be  noticed,  after  a  disseisin 
continued  for  twenty  years,  or  in  other  words  after  twenty  years  from 


CHAP.  III.]  CHAPIN    V.    FREELAND.  139 

the  time  when  the  right  to  bring  a  writ  of  entry  or  to  enter  upon  the 
land  first  accrued,  the  former  owmer  of  a  freehold  can  neither  maintain 
any  action  to  recover  possession,  nor  enter  upon  the  land,  nor,  without 
an  entry,  convey  it ;  and  as  all  remedy,  either  by  action  or  by  taking 
possession,  is  gone,  his  title  is  held  to  have  been  lost.  The  effect  of 
the  statute  has  been  to  extinguish  the  right,  as  well  as  to  bar  the 
remedy,  and  this  is  the  construction  given  to  the  English  St.  of  3  & 
4  Wm.  IV.  c.  27.  Our  statute  of  limitations  of  personal  actions  was 
taken  from  the  St.  of  21  Jac.  I.  c.  16,  and  this  statute  has  been  held 
not  to  extinguish  the  right,  but  only  to  bar  the  remedy.  Owen  v. 
De  Beauvoir,  16  M.  &  W.  547;  5  Exch.  166.  Dawkins  v.  Penrhyn, 
6  Ch.  D.  318;  4  App.  Cas.  51.  Dundee  Harbour  v.  Dougall,  1  Macq. 
317,  321.  In  re  Alison,  11  Ch.  D.  284. 

Section  1  of  the  Pub.  Sts.  c.  197,  declares:  "The  following  actions 
shall  be  commenced  within  six  years  next  after  the  cause  of  action  ac- 
crues, and  not  afterwards  .  . .  actions  of  replevin,  and  all  other  actions 
for  taking,  detaining,  or  injuring  goods  or  chattels."  There  is  no 
statute,  and  no  law,  prohibiting  the  owner  of  personal  chattels  from 
peaceably  taking  possession  of  them  whenever  he  may  find  them, 
and  the  technical  law  of  seisin  and  disseisin  was  never  applied  to 
personal  chattels.  It  is  established  in  this  Commonwealth  that  a  debt 
barred  by  the  statute  of  limitations  of  the  place  of  the  contract  is 
not  extinguished.  The  statute  only  bars  the  remedy  by  action  within 
the  jurisdiction  where  the  defendant  has  resided  during  the  statutory 
period.  Bulger  v.  Roche,  11  Pick.  36.  It  was  formerly  contended  that, 
if  the  parties  to  a  contract  had  resided  within  the  same  jurisdiction 
so  long  a  time  that,  under  the  statute  of  limitations  there,  the  remedy 
by  action  was  barred,  this  ought  to  be  held  everywhere  to  have  ex- 
tinguished the  right  of  action,  and  thus  to  have  extinguished  the  debt, 
especially  if  the  residence  was  that  of  the  place  where  the  contract 
was  made;  and  the  courts  of  some  jurisdictions  so  held.  Brown  v. 
Parker,  28  Wis.  21,  30.  Goodman  v.  Munks,  8  Port.  84,  which  is  over- 
ruled in  Jones  v.  Jones,  18  Ala.  248.  See  Le  Roy  v.  Croiiminshield, 
2  Mason,  151,  168.  This  view  was,  however,  generally  abandoned, 
and  was  never  the  law  of  this  Commonwealth,  of  the  English  Courts, 
of  the  Supreme  Court  of  the  United  States,  or  of  the  courts  of 
most  of  the  States.  A  distinction  was  made  in  some  of  the  Southern 
States  between  debts  and  chattels;  and,  in  suits  for  the  recovery  of 
slaves,  it  was  held  that  adverse  possession  for  the  statutory  period 
of  limitations  of  personal  actions  created  a  title.  In  some  of  the 
decisions,  it  is  said  that  the  possession  must  be  bona  fide,  and  ac- 
quired A\'ithout  force  or  fraud,  and  must  be  peaceable  and  adverse. 
It  was  held,  however,  that  where  there  had  been  successive  purchases 
of  a  slave,  the  possession  of  the  successive  purchasers  could  not  be 
tacked,  so  as  to  create  a  title  by  adverse  possession,  because  each 
purchase,  if  the  purchaser  took  possession,  was  a  new  conversion; 


140  CHAPIN    V.    FREELAND.  [CHAP.  UL 

but  such  a  title  acquired  by  one  person  could  be  transferred  to  an- 
other. In  some  of  these  States,  at  the  time  of  these  decisions,  it  was 
also  held  that  the  statute  of  limitations  of  personal  actions  extin- 
guished debts.  Cockfield  v.  Hudson,  1  Brev.  311.  Howell  v.  Hair,  15 
Ala.  194.  Clark  v.  Slaughter,  34  Miss.  65.  Winhurn  v.  Cochran,  9 
Tex.  123.  Wells  v.  Ragland,  1  Swan,  501.  Bryan  v.  Weems,  29  Ala. 
423.  Seay  v.  Bacon,  4  Sneed,  99.  Bernard  v.  Chiles,  7  Dana,  18. 
Moffatt  V.  Buchanafi,  11  Humph.  369.  Newhy  v.  Blakey,  3  Hen. 
&  M.  57.  Beadle  v.  Hunter,  3  Strob.  331.  See  Goodinan  v.  Munks, 
ubi  supra. 

In  Preston  v.  Briggs,  16  Vt.  124,  and  Baker  v.  Chase,  55  N.H.  61, 
it  was  suggested  that  adverse  possession  of  a  chattel  for  six  years 
transferred  the  title;  but  the  cases  did  not  require  a  determination 
of  the  question.  In  Campbell  v.  Holt,  115  U.S.  620,  623,  there  is  an 
express  declaration  that  "the  weight  of  authority  is  in  favor  of  the 
proposition  that  where  one  has  had  the  peaceable,  undisturbed, 
and  open  possession  of  real  or  personal  property,  with  an  assertion 
of  his  o^vnership,  for  the  period  which,  under  the  law,  would  bar  an 
action  for  its  recovery  by  the  real  owner,  the  former  has  acquired  a 
good  title,  a  title  superior  to  the  latter,  whose  neglect  to  avail  himself 
of  his  legal  rights  has  lost  him  his  title."  The  cases  there  cited  are 
two  of  the  slave  cases  which  have  been  mentioned,  and  decisions  of 
the  Supreme  Court  of  the  United  States  relating  to  real  property. 

The  law  of  the  Supreme  Court  of  the  United  States  in  regard  to 
contracts  was  carefully  stated  in  Townsend  v.  Jemison,  9  How.  407; 
and  it  was  there  held  that,  when  the  statute  extinguished  the  right 
or  title,  and  created  a  new  one,  this  new  right  or  title  would  be  rec- 
ognized by  courts  in  other  jurisdictions;  but,  if  the  statute  only  af- 
fected the  remedy,  the  courts  would  afford  the  remedies  provided  by 
their  own  laws.  Our  decisions  upon  the  effect  of  our  statute  of  limi- 
tations upon  debts  or  contracts  uniformly  hold  that  it  affects  only 
the  remedy  by  action.  Bulger  v.  Roche,  ubi  supra.  Thayer  v.  Mann, 
19  Pick.  535.   Hancock  v.  Franklin  Ins.  Co.,  114  Mass.  155. 

There  is  nothing  in  the  statute  which  suggests  any  distinction 
between  actions  to  recover  chattels  and  actions  to  recover  debts, 
and  it  does  not  purport  to  be  a  statute  relating  to  the  acquisition  of 
title  to  property,  but  a  statute  prescribing  the  time  within  which 
certain  actions  shall  be  brought.  There  is  not  a  trace  to  be  found 
in  our  reports  of  the  doctrine  that  possession  of  chattels  for  the  stat- 
utory period  of  limitations  for  personal  actions  creates  a  title,  and  I 
can  find  no  such  doctrine  in  the  English  reports,  or  in  the  reports 
of  a  majority  of  the  courts  of  the  States  of  this  country.  The  law  con- 
cerning the  acquisition  of  easements  in  real  property  by  prescrip- 
tion, in  its  modern  form,  was  established  by  the  courts  by  adopting 
in  part  the  Roman  law,  and  by  limiting  the  period  of  enjo^yment 
necessary  to  create  the  right  to  the  time  required  by  statute  for 


CHAP.  III.]  CHAPIN    V.    FREELAND.  141 

bringing  actions  for  the  recovery  of  land.  Edson  v.  Munsell,  10 
Allen,  557. 

A  right  of  way  may  be  acquired  by  repeated  trespasses,  if  they  arc. 
openly  made  under  a  claim  of  right,  and  are  uninterrupted;  but 
twenty  years'  user  is  required,  although  the  limitation  for  actions 
of  tort  in  the  nature  of  trespass  quare  clausum  is  six  years.  It  was 
inevitable,  perhaps,  that,  if  a  title  to  land  could  be  acquired  by  ad- 
verse possession,  a  privilege  of  easement  in  land  should  be  acquired 
by  adverse  use.  By  the  Pub.  Sts.  c.  197,  §  14,  if  a  person  hable  to 
an  action  "fraudulently  conceals  the  cause  of  such  action  from  the 
knowledge  of  the  person  entitled  to  bring  the  same,  the  action  may 
be  commenced  at  any  time  within  six  years  after  the  person  so  en- 
titled discovers  that  he  has  such  cause  of  action."  This  section  has 
been  construed  strictly.  Nudd  v.  Hamblin,  8  Allen,  130.  Under  this 
section,  if  one  man  stole  another  man's  watch  and  carried  it  on  his 
person  as  watches  are  usually  carried,  it  might  be  held  that  the 
thief  fraudulently  concealed  the  cause  of  action  from  the  owner; 
but  if  the  thief  sold  the  watch  to  one  who  purchased  it  in  good  faith, 
and  he  carried  it  in  his  pocket,  this  could  not  be  held  to  be  a  fraudu- 
lent concealment;  and,  if  the  statute  of  limitations  transfers  the  title, 
the  owner,  at  the  end  of  six  years,  would  lose  the  title  to  his  watch, 
although  he  may  not  have  known  or  been  able  to  discover  who  had  it. 
The  possession  of  personal  chattels,  even  although  honestly  held, 
is  not  always  open  and  notorious,  and  if  title  to  such  chattels  is  to 
be  acquired  by  possession,  it  ought  to  be  by  an  adverse  possession 
bona  fide  held  under  a  claim  of  right,  which  was  knowm  to  the  o^Tier, 
or  so  open  and  notorious  that  the  o^vner  ought  to  have  known  it.  The 
second  request  does  not  assume,  and  it  has  not  been  found  as  a  fact, 
that  such  was  the  nature  of  Warner's  possession. 

Lamb  v.  Clark,  5  Pick.  193,  was  assumpsit  by  an  executor  to  re- 
cover  money  paid  to  the  defendant  by  the  makers  of  certain  promis- 
sory notes  which  had  been  delivered,  more  than  six  years  before 
the  action  was  brought  to  the  defendant  as  his  property,  by  the  plain- 
tiff's testator,  as  the  consideration  of  a  conveyance  of  land  by  the 
defendant  to  the  testator's  \\dfe.  The  plaintiff  contended  that  there 
was  a  fraudulent  combination  between  the  defendant  and  the  wife 
of  the  testator,  whereby  the  testator  had  been  defrauded  of  his 
property.  It  was  conceded  by  the  court,  that  an  action  of  trover 
might  have  been  brought  at  any  time  within  six  years  after  the  de- 
fendant received  the  notes,  and  that  such  an  action  was  barred  by 
the  statute  of  limitations.  The  plaintiff,  however,  was  permitted  to 
recover  all  sums  of  money  received  by  the  defendant  from  the  makers 
of  the  notes  within  six  j'ears  before  the  commencement  of  the  action. 
If  the  expiration  of  the  six  years  had  transferred  the  title  of  the  notes 
to  the  defendant,  it  is  difficult  to  see  how  the  action  could  have  beep 
maintained. 


142  CHAPIN   V.    FREELAND.  •    [CHAP.  IIL 

Wilkinson  v.  Verity,  L.  R.  6  C.  P.  206,  was  detinue  by  the  church 
wardens  of  All  Saints  against  the  vicar,  who,  in  1859,  having  the 
custody  of  the  communion  plate,  sold  it  for  old  silver.  The  church 
wardens  discovered  this  in  1870,  and  then  made  a  demand.  The 
defence  was  the  statute  of  limitations,  and  that  the  conversion  oc- 
curred when  the  defendant  sold  the  plate.  The  court  say:  "If  this 
had  been  an  action  for  damages  for  the  conversion  of  the  plate,  in 
which  the  demand  and  refusal  would  have  been  only  evidence  of  a 
conversion,  it  would  have  been  impossible  to  contend  that  the  date 
of  the  conversion  could  be  excluded,  or  to  deny  that  the  defence 
upon  the  statute  was  sustained.  Nor  could  the  ignorance  of  the 
plaintiffs  or  their  predecessors  have  prevented  its  operation."  But 
the  court  held  that  the  plaintiffs  could  elect  to  sue  the  defendant  in 
detinue  upon  his  contract  as  bailee  to  deliver  the  plate  on  demand, 
and  that  "it  is  no  answer  for  the  bailee  to  say  that  he  has  inca- 
pacitated himself  from  complying  with  the  lawful  demand  of  the 
bailor." 

These  cases  show  that  the  statute  of  limitations  of  personal  ac- 
tions is  construed  with  reference  to  the  particular  action  brought, 
and  indicate  that  there  is  no  change  of  title  in  property,  although 
the  time  for  bringing  an  action  of  trover  has  expired.  I  think  that 
the  subject  of  the  acquisition  of  title  to  personal  chattels  by  adverse 
possession  can  best  be  dealt  with  by  the  Legislature,  if  it  is  thought 
necessary  to  establish  such  a  rule  of  law;  and  that  it  was  not  the  in- 
tention of  our  statute  of  limitations  of  personal  actions  to  extinguish 
rights  or  titles. 

There  is  much  force  in  the  suggestion,  that,  if  the  defendant  could 
not  have  recovered  the  counters  by  action  at  the  time  she  took  pos- 
session, she  ought  not  to  be  permitted  to  take  them  from  the  posses- 
sion of  the  plaintiffs  by  force  or  fraud ;  but  it  is  not  found  in  the  case 
that  she  took  them  by  force  or  fraud,  and  the  request  does  not  assume 
this ;  and  I  think  that  the  defendant,  at  the  time  she  took  possession, 
could  have  recovered  these  counters  of  the  plaintiffs  by  action,  as 
the  statute  of  limitations  did  not  begin  to  run  in  favor  of  the  plain- 
tiffs until  they  took  possession,  which  was  at  least  as  late  as  1879; 
and  it  is  not  found  that  the  plaintiffs'  vendors  had  any  title  which 
they  could  convey  to  the  plaintiffs.  I  think  the  second  and  third 
requests  ought  not  to  have  been  given. 

Note.  —  The  weight  of  authority  in  the  United  States  is  that  the 
adverse  possessor  of  a  chattel  becomes  its  owner,  after  the  lapse  of 
the  period  within  which  the  former  owTier  might  have  sued  for  its 
recovery.  Grunewald  Co.  v.  Copeland,  131  Ala.  345;  Hicks  v.  Fluit, 
21  Ark^ ^&3;  Southwestern  R.R.  Co.  v.  Atlantic  R.R.  Co.,  53  Ga.  401; 
Fears  v.  Sykes,  35  Miss.  633;  Gregg  v.  Bigham,  1  Hill,  Law  (S.C.), 
299;  Connor  v.  Hawkins,  71  Tex.  582;  Preston  v.  Briggs,  16  Vt.  124; 


CHAP.  III.]  DRAGOO    V.    COOPER.  143 

Thornburg  v.  Bowen,  37  W.Va.  538,  543;  Campbell  v.  Holt,  115  U.S. 
620,  623.  ■ 

But  see  contra,  Goodwin  v.  Morris,  9  Oreg.  322. 

In  Miller  v.  Dell,  [1891]  1  Q.  B.  468,  Lord  Esher,  M.R.,  said  (p. 
471) :  "The  property  in  chattels,  which  are  the  subject-matter  of  this 
action,  is  not  changed  by  the  Statute  of  Limitations  though  more 
than  six  years  may  elapse,  and  if  the  rightful  owner  recovers  them 
the  other  man  cannot  maintain  an  action  against  him  in  respect  of 
them." 


DRAGOO  V.  COOPER. 

9  Bush  (Ky.),  629.     1873. 

Judge  Lindsay  delivered  the  opinion  of  the  court. 

This  action  was  instituted  by  Cooper  to  recover  from  Dragoo  a 
horse  that  had  been  stolen  from  the  former  on  the  22d  day  of  Janu- 
ary, 1865.  It  is  agreed  that  in  May,  1865,  a  party  in  possession  of 
the  horse  sold  him  to  one  W.  R.  Le^^s,  and  that  in  November,  1867, 
Lewis  sold  and  delivered  him  to  Dragoo,  who  kept  him  up  to  the  28th 
of  September,  1871,  when  the  action  for  his  recovery  was  conunenced. 

It  is  further  agreed  that  Cooper  lived  in  Breckinridge  County,  Ken- 
tucky, and  that  both  Le^vis  and  Dragoo  resided  in  Nelson  County, 
eighty  miles  distant  from  Cooper's  residence;  and  that  he  did  not 
know  where  his  horse  was  nor  who  had  him  in  possession  until  within 
a  short  time  prior  to  the  institution  of  this  action;  and  that  he  had 
made  diligent  search  for  him  from  the  time  of  his  loss  until  he  found 
him  in  possession  of  Dragoo. 

It  is  not  necessary  to  notice  the  prices  paid  for  the  horse  by  Lewis 
and  Dragoo,  as  compared  with  his  actual  value,  inasmuch  as  it  is 
admitted  that  they  acted  in  good  faith. 

Dragoo  pleaded  the  statute  of  limitation,  and  the  only  question 
to  be  determined  is,  whether  under  the  admitted  facts  this  plea  pre- 
sented a  bar  to  the  action. 

Section  2,  article  3,  chapter  63,  Revised  Statutes,  provides  that 
"actions  for  the  taking,  detaining,  or  injuring  personal  property,  in- 
cluding actions  for  the  specific  recovery  thereof,  .  .  .  shall  be  com- 
menced within  five  years  next  after  the  cause  of  action  accrued." 

It  is  claimed  that  the  statute  does  not  apply,  because  Cooper  did 
not  know  where  his  horse  was  nor  who  had  him  in  possession,  and 
hence  could  not  sue. 

Various  acts  upon  the  part  of  those  against  whom  actions  might 
be  prosecuted  are  made  to  stop  the  running  of  the  statute,  by  the 
provisions  of  article  4  of  said  chapter,  such  as  departing  from  the 
state,  absconding,  or  concealing  one's  self,  or  by  other  indirect 
means  obstructing  the  prosecution  of  a  suit. 


144  DRAGOO    V.    COOPER.  [CHAP.  III. 

In  this  case  neither  Lewis  nor  Dragoo  did  anything  to  obstruct 
Cooper  in  bringing  or  instituting  his  suit,  and  his  misfortune  of 
not  being  apprised  as  to  the  party  or  parties  against  whom  his  cause 
of  action  existed  does  not  bring  his  case  within  either  of  the  statu- 
tory exceptions.  We  are  aware  of  no  instance  in  which  it  has  been 
held  that  ignorance  of  a  party's  rights  will  stop  the  statute  from  run- 
ning against  him.  This  court  held  otherwise  in  the  recent  case  of 
Kinnison  v.  Carpenter,  &c.,  upon  the  authority  of  Angell  on  Limita- 
tions, pp.  68,  117,  298,  and  21  Maine,  315. 

Appellee  further  urges  that  his  cause  of  action  did  not  accrue 
against  Dragoo  until  he  (Dragoo)  acquired  possession  of  this  horse, 
which  was  in  November,  1867,  less  than  five  years  before  suit,  and 
that  Dragoo  is  not  entitled  to  the  benefit  of  the  possession  of  his 
vendor  Lewis. 

In  the  case  of  Shannon  v.  Kinney,  1  Marshall,  4,  which  was  a  suit 
for  the  recovery  of  real  property,  this  court  held  that  to  toll  the  right 
of  entry  the  adverse  possession  need  not  continue  all  the  time  in  one 
person,  nor  be  held  under  the  same  title ;  and  decided  that,  according 
to  the  literal  import  of  the  statute,  the  plaintiff  could  only  enter 
'  pon  the  land  within  twenty  years  after  his  right  of  entry  accrued, 
^id  consequently  an  adverse  possession  for  that  length  of^time  would 
lOll  his  right;  and  that  it  was  a  matter  of  indifference  whether  the 
possession  had  been  held  uniformly  under  one  title  or  at  different 
times  under  different  titles,  provided  the  claim  of  title  was  always 
adverse  to  the  plaintiff.  The  same  doctrine  was  recognized  and  en- 
forced in  the  subsequent  cases  of  Hard  v.  Walton,  2  Marshall,  621, 
and  Winn  v.  Wilhite,  5  J.  J.  Marshall,  524. 

The  language  of  the  statute  of  1796,  fixing  the  limitation  in  ac- 
tions for  the  recovery  of  realty,  is  not  essentially  different  from  that 
of  our  present  statute  prescribing  the  time  within  which  actions  like 
this  shall  be  commenced,  and  we  perceive  no  valid  reason  why  the 
rule  of  construction  adopted  in  suits  relating  to  realty  shall  not  be 
applied  in  actions  for  the  recovery  of  personalty.  The  statute  of 
limitations  is  not  merely  a  bar  to  the  remedy;  it  takes  away  the  right, 
and  invests  it  in  the  party  having  adverse  possession  of  a  chattel  the 
requisite  length  of  time.  {Stanley  v.  Earl,  5  Littell,  281.)  And  it  can- 
not be  material  whether  the  adverse  possession  that  destroys  the 
o-uTier's  right  has  been  in  one  or  more  persons,  so  that  it  has  been 
continuous.  Statutes  limiting  the  period  within  which  actions  may 
be  commenced  are  intended  to  quiet  men's  estates  and  to  prevent 
litigation;  and  as  the  possession  of  personal  property  is  'prima  fade 
e-vndence  of  ownership,  they  should  not  be  too  strictly  construed 
against  persons  who  in  good  fait*h  purchase  such  property.  Dragoo 
does  not  acquire  title  to  the  horse  in  controversy  by  reason  of 
Lewis's  purchase  from  the  thief,  who  could  have  no  title,  but  by 
virtue  of  the  possession  under  claim  of  title  continuing  in  himself 


CHAP.  III.]  BRYAN    V.    WEEMS.  145 

and  Lewis  for  more  than  five  years  before  the  institution  of  the 
action. 

The  dictum  in  the  case  of  Buffington  v.  Ulen,  7  Bush,  231,  is  not  con- 
clusive of  the  question  here  under  consideration.  This  action  is  not 
for  the  conversion  of  the  horse;  and  herein  it  differs  from  the  case 
cited.  Besides,  in  that  case  Buffington's  vendor  was  entitled  to  keep 
the  mare  until  demanded,  and  it  was  considered  that  there  could  be 
no  conversion  by  any  one  having  her  in  possession  until  the  demand 
was  made.  In  this  case  the  conversion  was  complete  so  soon  as 
Le-^ds  took  possession  of  the  horse,  -with  a  claim  of  title  adverse  to 
that  of  Cooper,  and  an  action  therefor  might  have  been  instituted 
at  once.    (2  Hilliard  on  Torts,  246.) 

The  instructions  given  by  the  circuit  court  are  inconsistent  with 
the  views  herein  expressed,  consequently  the  judgment  is  reversed, 
and  the  cause  remanded  for  a  new  trial  upon  principles  consistent 
with  this  opinion. 

Note.  —  See  accord,  Bohannon  v.  Chapman,  17  Ala,  696,  698; 
Hicks  V.  Fluit,  21  Ark.  463;  Shute  v.  Wade,  5  Yerg.  (Tenn,)  1,  12; 
Thornburg  v,  Bowen,  37  W.Va,  538,  543.  Cf.  Moffatt  v,  Buchanan, 
11  Humph.  (Tenn,)  369,  and  cases  cited,  in  v/hich  the  court  was  of 
opinion  that  the  executor  of  an  adverse  possessor  could  not  tack  the 
period  of  possession  by  him  to  the  period  of  possession  by  his  testator. 


BRYAN  V.  WEEMS. 

29  Ala.  423.     1856. 

One  of  the  questions  was  whether  the  offspring  of  slaves,  bom 
while  the  slaves  were  adversely  possessed,  belonged  to  the  adverse 
possessor  so  soon  as  the  statutory  period  had  run  with  respect  to  the 
mothers. 

Stone,  J,  It  will  be  seen  that  we  have  assimilated  the  com- 
plainant's right  to  rehef  in  this  case  to  the  trustee's  right  to  main- 
tain detinue.  If,  at  the  time  the  bill  in  this  case  was  filed.  Green,  the 
trustee,  had  instituted  his  action  of  detinue  or  trover  for  the  slaves, 
against  Sledge,  the  executor,  the  six  years'  statute,  if  pleaded,  would 
have  barred  either  action,  not  only  as  to  the  slaves  bequeathed  by 
the  will,  but  also  as  to  the  offspring  of  the  females,  born  after  the 
adverse  holding,  Morris  v.  Perregay,  7  Gratt.  373;  White  v,  Martin, 
1  Porter,  215, 

When  defendant's  right  to  property  is  established  by  a  success- 
ful interposition  of  the  plea  of  the  statute  of  limitations,  it  relates 
back  to  the  time  of  the  first  taking,  and  carries  with  it  all  the  inter- 
mediate profits,  and  the  increase  of  the  females  while  in  the  adverse 


146  BRYAN    V.    WEEMS.  [cHAP.  IIL 

possession  of  such  defendant,  unless,  as  to  such  increase,  some  act 
be  done  before  the  bar  against  recovery  of  the  mother  is  perfected, 
which  prevents  the  operation  of  this  rule.  Partus  sequitur  ventrem. 
To  hold  otherwise  would  lead  to  strange  results  in  the  case  of  female 
slaves.  An  adverse  holding  of  six  years  would  vest  the  title  in  the 
holder.  During  the  time  she  was  adversely  held,  she  may,  at  inter- 
vals, have  given  birth  to  children;  she  and  the  children  all  the  time 
remaining  together,  out  of  the  possession  of  the  claimant.  She  may 
have  given  birth  to  an  infant  within  a  very  short  time  before  the 
completion  of  the  six  years.  According  to  the  argument,  all  claim  to 
the  mother  would  be  forfeited,  while  to  bar  the  right  to  recover  her 
child  would  require  another  period  of  near  six  years. 

Another  illustration  may  serve  to  present  this  argument  in  a 
stronger  light.  Suppose  the  property  adversely  held  consist  of  domes- 
tic anunals,  who  multiply  at  an  early  age,  and  rapidly.  Before  the 
six  years  expire,  the  females,  in  all  probability,  will  have  increased 
abundantly;  and  perhaps  at  no  point  of  coming  time,  wdll  there  be  a 
female  that  has  reached  the  age  of  six  years,  without  yielding  her 
increase.  If  the  offspring  do  not  follow  the  mother  as  an  incident,  but 
each  successive  scion  must  itself  be  adversely  held  for  the  term  of 
six  years  before  the  statute  runs,  unless,  before  its  birth,  the  parent 
stock  had  existed  and  been  adversely  held  for  a  like  period,  the  entire 
interest  of  the  former  ov.Tier  would  not  probably  be  extinguished  in 
any  conceivable  number  of  years.  This  point  was  not  raised  in  argu- 
ment; but  we  have  felt  it  our  duty  to  notice  it,  as  the  court  is  not 
imanimous. 

The  decree  of  the  chancellor  is  affirmed. 

Rice,  C.J.  —  There  are  many  cases,  in  which  the  true  owner  of 
property,  by  electing  a  particular  form  of  action,  and  prosecuting 
it  to  judgment  and  satisfaction,  or  by  electing  to  sue  for  only  part 
of  an  entire  demand,  has  been  held  to  have  waived  and  lost  his  right 
to  that  full  measure  of  redress  to  which  he  would  other^nse  have  been 
entitled.  Thus,  if  a  female  slave  has  been  permanently  converted, 
and  the  owner  elects  to  bring  trover  for  such  conversion,  and  recovers 
her  value,  and  receives  satisfaction,  he  thereby  elects  to  treat  the 
conversion  as  a  -purchase  by  the  person  guilty  of  the  conversion;  and 
as  soon  as  the  judgment  is  satisfied,  the  title  to  the  slave  passes,  by 
operation  of  law,  to  the  defendant  in  the  judgment,  and  relates  hack 
to  the  time  of  the  conversion.  Consequently,  the  children  born  of 
such  slave  after  the  conversion,  and  pending  the  suit  for  the  conver- 
sion, become  the  property  of  the  defendant  in  the  suit,  as  soon  as 
the  OTVTier  of  their  mother  accepts  satisfaction  of  the  judgment 
therein  rendered.  That  result  is  worked  out  by  the  application  of 
the  doctrines  of  election,  waiver,  and  relation.  See  White  v.  Martin, 
1  Porter,  215;  Fireynen's  Ins.  Co.  v.  Cochran,  27  Ala.  R.  228;  Wittick 
v.  Traun,  ib.  562. 


CBAV.  III.]  BRYAN    V.    WEEMS.  147 

But  those  doctrines  have  no  apphcation  to  the  present  case;  for 
the  complainants  have  not  brought  any  former  suit,  nor  done  any  act 
which  can  be  construed  into  an  election  or  a  waiver,  or  which  can 
enable  the  defendant  to  invoke  the  doctrine  of  relation.  They  have 
been  merely  passive;  and  if  they  have  lost  their  right  to  am'  of  the 
slaves  in  controversy,  it  is  by  tnere  force  of  that  part  of  the  statute  of 
limitations,  which  requires  the  owner  of  personal  chattels  adversely 
held  to  sue  for  them  within  six  years  after  the  commencement  of  the 
adverse  possession. 

The  legal  effect  of  that  part  of  that  statute  is  not,  in  nw  opinion, 
what  my  brethren  have  pronounced  it  to  .be  in  the  opinion  just  de- 
livered. They  hold,  that  it  bars  the  complainants  as  to  slaves  who 
were  not  six  years  old  when  this  suit  was  commenced,  and  who  had 
not  been  held  adversel}''  for  six  years,  and  who  were  born  of  a  mother 
who  had  not  been  held  adversely  for  six  years  at  the  time  of  their 
birth.   I  cannot  assent  to  that  position. 

Where  slavery  exists,  the  children  of  a  female  slave  belong  to  him 
who,  at  the  time  of  their  birth,  was  the  general  and  absolute  OTMier 
of  their  mother.  The  children  born  of  her  whilsft  she  is  in  the  posses- 
sion of  an  adverse  holder,  but  before  the  adverse  holding  has  continued 
six  years,  are  as  completely  the  property  of  the  person  who,  at  the 
time  of  their  birth,  is  the  absolute  owner  of  their  mother,  as  if  they 
had  been  born  whilst  she  was  in  the  actual  possession  of  that  absolute 
owner.  The  children  born  of  her  after  the  adverse  holder  has,  by  an 
adverse  possessio7i  of  six  years,  acquired  tlie  title  to  her,  belong  to  the 
adverse  holder.  The  statute  of  limitations  has  no  effect  whatever 
upon  the  title  of  the  true  owner  to  the  mother,  until  she  has  been  in 
the  adverse  possession  of  another  for  the  full  period  of  six  j^ears.  So 
far  as  that  statute  is  concerned,  her  children,  as  soon  as  they  are  born, 
are,  in  legal  contemplation,  as  separate  and  distinct  from  her,  as  if 
in  fact  they  were  not  in  any  wise  related  to  her.  Each  child,  as  soon 
as  bora,  is  a  personal  chattel,  separate  and  distinct  from  its  mother, 
and  from  every  other  child.  The  detention  of  each  child  born  befoj^e 
the  mother  has  been  adversely  held  for  six  years,  is  a  new,  separate, 
and  distinct  cause  of  action,  which  the  true  owner  may  enforce  in  a 
separate  and  distinct  suit.  —  Wittick  v.  Traun,  supra.  The  cause  of 
action  for  the  detention  of  a  child  could  not  possibly  accrue  before 
it  was  born.  The  statute  of  limitations  does  not  commence  running 
against  a  cause  of  action  before  it  accrues.  One  separate  and  distinct 
cause  of  action  is  not  barred  by  that  statute,  merelj'  because  another, 
which  accrued  at  a  different  time,  is  barred.  That  statute  does  not 
give  to  the  adverse  possessor  title  to  a  slave  which  has  neither  been 
held  adversely  for  six  years,  nor  been  born  of  a  mother  who  had  been 
held  adversely  for  six  years  before  its  birth.  In  other  words,  to  give 
title  to  a  slave  to  an  adverse  possessor,  under  the  statute  of  limita- 
tions, it  is  at  least  essential  that  the  slave  should  have  been  held 


148  BRYAN    V.    WEEMS.  [CHAP.  III. 

adversely  for  six  years,  or  should  have  been  bom  of  one  who  had 
been  held  adversely  for  six  years  prior  to  its  birth.  If  a  child  is' born 
before  its  mother  has  been  held  adversely  for  six  years,  it  is  legally 
impossible  that  the  true  owner  can  be  barred  as  to  the  child,  by  the 
mere  operation  of  the  statute  of  limitations  of  six  j^ears,  before  the 
child  is  six  years  old.  According  to  the  opinion  of  my  brethren,  that 
statute  may  bar  the  owTier,  as  to  the  child,  before  the  child  is  three 
days  old!  They  work  out  this  strange  result,  by  what  seems  to  me 
a  very  plain  misapplication  of  the  doctrine  of  relation,  and  by  over- 
looking the  effect  of  the  undeniable  proposition,  that  the  detention 
of  each  child  bom  before  the  mother  has  been  held  adversely  for  six  years, 
is  in  itself  a  cause  of  action,  new,  distinct,  and  different  from  that 
which  arose  from  the  detention  of  the  mother. —  Ivey  v.  Owens,  28 
Ala.  Rep.  641. 

One  illustration  will  be  sufficient  to  demonstrate  the  unfitness  of 
the  application  of  the  doctrine  of  relation  to  any  case  like  the  present : 
Suppose  A.  has  held  adversely,  for  four  years,  the  female  slave  of  B. 
At  the  end  of  the  four  years,  and  whilst  adversely  held,  she  gives  birth 
to  a  child.  When  the  child  is  one  year  old,  B.,  the  real  owner  of  the 
mother  and  child,  finds  the  child  in  the  highway,  takes  it  peaceably 
into  his  possession,  and  keeps  it  until  after  the  six  years'  adverse 
possession  of  its  mother  has  run  out,  and  the  title  to  her  has  thereby 
become  vested  in  the  adverse  possessor.  The  adverse  possessor,  as 
soon  as  he  has  thus  acquired  title  to  the  mother,  brings  detinue  for 
the  child  against  the  owner  who  had  taken  the  child  in  the  highway 
as  aforesaid !  He  invokes  the  doctrine  of  relation,  and  calls  upon  the 
court  to  apply  the  doctrine,  and  give  him  a  judgment  for  the  child. 
Would  any  court,  upon  such  facts,  think  of  applying  the  doctrine  of 
relation,  or  giving  to  the  adverse  possessor  a  judgment  for  the  child? 
If  my  brethren  are  right  in  their  opinion,  the  adverse  possessor  would 
recover  the  child,  upon  the  doctrine  of  relation.  His  title  to  the  mothei 
being  clear,  by  adverse  possession  of  six  years,  and  the  child  having 
been  bom  whilst  his  adverse  possession  was  continuing,  although  it 
had  continued  only  four  years  at  the  birth  of  the  child,  —  the  law, 
as  laid  down  by  my  brethren,  would  give  him  the  child,  by  making 
his  title  to  the  mother  relate  back  to  the  commencement  of  the  adverse 
possession. 

Without  saying  anything  as  to  other  parts  of  the  opinion  of  my 
brethren,  I  here  record  my  dissent  from  the  reasoning  and  conclu- 
sions attained  by  them. 


CHAP.  IV.]  DAVIS    V.    EASLEY.  149 


CHAPTER  IV. 

ACCESSION. 

Blackstone,  Commentaries,  Book  II,  p.  404. 

The  doctrine  of  property  arising  from  accession  is  also  grounded 
on  the  right  of  occupancy.  By  the  Roman  law,  if  any  given  cor- 
poreal substance  received  afterwards  an  accession  by  natural  or  by 
artificial  means,  as  by  the  groA\i:h  of  vegetables,  the  pregnancy  of 
animals,  the  embroidering  of  cloth,  or  the  conversion  of  wood  or 
metal  into  vessels  and  utensils,  the  original  owner  of  the  thing  was 
entitled  by  his  right  of  possession  to  the  property  of  it  under  such 
its  state  of  improvement:  but  if  the  thing  itself,  by  such  operation, 
was  changed  into  a  different  species,  as  by  making  wine,  oil,  or  bread 
out  of  another's  grapes,  olives,  or  wheat,  it  belonged  to  the  new 
operator;  who  was  only  to  make  a  satisfaction  to  the  former  pro- 
prietor for  the  materials  which  he  had  so  converted.  And  these  doc- 
trines are  implicitl}'  copied  and  adopted  by  our  Bracton,  and  have 
since  been  confirmed  by  many  resolutions  of  the  courts. 


DAVIS   V.   EASLEY. 

13  111.  192.     1851. 

Replevin  for  a  quantity  of  boards.  The  boards  had  been  made 
from  trees  growing  on  land  of  which  the  plaintiff  claimed  to  be 
owner. 

Treat,  C.J.  ...  If  the  plaintiff  was  the  owner  of  the  trees, 
there  can  be  no  doubt  of  his  right  to  maintain  replevin  for  the  boards. 
The  property  in  the  trees  was  not  changed  by  manufacturing  them 
into  lumber.  The  title  still  continued  in  the  former  owner.  The 
property  was  still  capable  of  being  identified.  The  owner  of  property, 
wrongfully  taken,  may  pursue  it,  so  long  as  it  can  be  identified. 
Whatever  alteration  in  form  it  may  assume,  the  owner  may  reclaim 
it,  in  its  new  shape,  if  he  can  establish  the  identity  of  the  original 
materials;  as  where  cloth  is  made  into  a  garment,  trees  into  rails  or 
boards,  or  iron  into  bars.  The  wrongful  taker  cannot  by  any  act  of 
his  own  acquire  title  against  the  owner,  unless  he  destroys  the  iden- 
tity of  the  thing,  or  annexes  it  to,  and  makes  it  a  part  of,  some  other 
thing,  which  is  the  principal;  as  the  conversion  of  grain  into  malt, 
coin  into  a  cup,  or  timber  into  a  house.  2  Blackstone's  Comm.  404; 


150  WETHERBEE  V.    GREEN.  [CHAP.  IV. 

2  Kent's  Comm.  363;  Snyder  v.  Vaux,  2  Rawle,  423;  Belts  v.  Lee, 
5  Johnson,  348;  Brown  v.  Sax,  7  Cowen,  95. 

Note.  —  In  Belts  v.  Lee,  5  Johns.  (N.Y.)  348,  the  court  approved 
the  doctrine  that  "whatever  alteration  of  form  any  property  has 
undergone,  the  owner  may  seize  it,  in  its  new  shape,  if  he  can  prove 
the  identity  of  the  original  materials;  as  if  leather  be  made  into 
shoes,  or  cloth  into  a  coat,  or  a  tree  be  squared  into  timber." 

In  Burris  v.  Johnson,  1  J.  J.  Marsh.  (Ky.)  196,  the  court  said: 
"If  A  enter  on  the  land  of  B  and  cut  down  his  timber,  without  his 
consent,  and  construct  out  of  it  the  frame  of  a  flat-bottomed  boat,  is 
B  liable  to  an  action  of  trespass  for  taking  and  converting  the  timber 
thus  constructed? 

"This  question  must  be  decided  in  the  negative. 

"The  transformation  of  the  timber  into  a  new  shape  does  not 
change  the  specific  character  or  qualities  of  the  native  material.  It 
is  still  wood,  exclusively  wood,  and  the  same  wood  which  was  at- 
tached to  the  freehold  in  the  form  of  gro\vdng  trees.  And  while  the 
original  distinctive  qualities  can  be  identified,  no  expenditure  of 
skill  or  labor,  or  money,  in  the  alteration  of  the  form  of  the  timber, 
by  a  trespasser,  can  chvest  the  o^\'ner  of  the  trees  of  his  right  to  the 
wood,  into  whatever  shape,  or  for  whatever  purpose  it  may  have 
been  changed,  without  accession  of  other  materials,  or  of  value  be- 
yond what  accrued  in  this  case." 


WETHERBEE   v.   GREEN. 

22  Mich.  311.     1871. 

Error  to  Bay  Circuit. 

This  was  an  action  of  replevin,  brought  by  George  Green,  Charles 
H.  Camp  and  George  Brooks,  in  the  Circuit  Court  for  the  County  of 
Bay,  against  George  Wetherl^ee,  for  one  hundred  and  fifty-eight 
thousand  black  ash  barrel  hoops,  alleged  to  be  of  the  value  of  eight 
hundred  dollars.  The  hoops  were  cut  upon  a  tract  of  land  which 
Green,  one  of  the  plaintiffs,  and  one  Thomas  Sumner  had  owTied  as 
tenants  in  common.  Green,  by  parol,  had  authorized  Sumner  to  sell 
timber  from  off  the  land.  AfteiT\^ards,  Sumner  being  indebted  to 
Camp  and  Brooks,  the  other  plaintiffs,  conveyed  to  them,  by  war- 
ranty deed,  his  undivided  half  of  the  land,  they  agreeing  orally  to  re- 
convey  upon  payment.  Sumner  after  his  conveyance  to  Camp  and 
Brooks,  sold  a  quantity  of  timber  growing  upon  the  land  to  Wether- 
bee,  who  cut  and  manufactured  the  same  into  hoops,  —  for  the  pos- 
session of  which  this  action  is  brought. 

On  the  trial,  the  Circuit  Judge  excluded  the  testimony  offered  by 


CHAP.  IV.]  WETHERBEE    V.    GREEN.  151 

the  defendant,  to  show  the  character  of  the  transaction  between 
Sumner  and  Camp  and  Brooks,  and  the  license  derived  from  Sumner 
to  cut  the  timber;  and  under  the  charge  of  the  court  the  jmy  found 
for  plaintiffs.  The  judgment  entered  upon  the  verdict  comes  into 
this  court  by  writ  of  error. 

CooLET,  J.  The  defendants  in  error  replevied  of  Wetherbee  a 
quantity  of  hoops,  which  he  had  made  from  timber  cut  upon  their 
land.  Wetherbee  defended  the  reple^dn  suit  on  two  gromids.  First, 
he  claimed  to  have  cut  the  timber  imder  a  license  from  one  Sumner, 
who  was  fonnerly  tenant  in  common  of  the  land  Adth  Green,  and 
had  been  authorized  by  Green  to  give  such  license.  Before  the  license 
was  given,  however,  Sumner  had  sold  his  interest  in  the  land  to 
Camp  and  Brooks,  the  co-plaintiffs  with  Green,  and  had  conveyed 
the  same  by  warranty  deed ;  but  Wetherbee  claimed  and  offered  to 
show  by  parol  evidence,  that  the  sole  purpose  of  this  conveyance  was 
to  secure  a  pre-existing  debt  from  Sumner  to  Camp  and  Brooks  and 
that  consequently  it  amounted  to  a  mortgage  only,  leaving  in  Sum- 
ner, under  our  statute,  the  usual  right  of  a  mortgagor  to  occupy  and 
control  the  land  until  foreclosure.  He  also  claimed  that  the  au- 
thority given  by  Green  to  Sumner  had  never  been  revoked,  and  that 
consequently  the  license  given  would  be  good  against  Green,  and 
constitute  an  effectual  bar  to  the  suit  in  replevin,  which  must  fail  if 
any  one  of  the  plaintiffs  was  precluded  from  maintaining  it. 

But  if  the  court  should  be  against  him  on  this  branch  of  the  case, 
Wetherbee  claimed  further  that  replevin  could  not  be  maintained  for 
the  hoops,  because  he  had  cut  the  timber  in  good  faith,  relying  upon 
a  permission  which  he  supposed  proceeded  from  the  parties  having 
lawful  right  to  give  it,  and  had,  by  the  expenditure  of  his  labor  and 
money,  converted  the  trees  into  chattels  immensely  more  valuable 
than  they  were  as  they  stood  in  the  forest,  and  thereby  he  had  made 
such  chattels  his  o^vn.  And  he  offered  to  show  that  the  standing 
timber  was  worth  twenty-five  dollars  only,  while  the  hoops  replevied 
were  shown  by  the  evidence  to  be  worth  near  seven  hundred  dollars; 
also,  that  at  the  time  of  obtaining  the  license  from  Sumner  he  had 
no  knowledge  of  the  sale  of  Sumner's  interest,  but,  on  the  other 
hand,  had  obtained  an  abstract  of  the  title  to  the  premises  from  a 
firm  of  land  agents  at  the  county  seat,  who  kept  an  abstract  book  of 
titles  to  land  in  that  county,  which  abstract  showed  the  title  to  be  in 
Green  and  Sumner,  and  that  he  then  purchased  the  timber,  relying 
upon  the  abstract,  and  upon  Sumner's  statement  that  he  was  au- 
thorized by  Green  to  make  the  sale.  The  evidence  offered  to  establish 
these  facts  was  rejected  by  the  court,  and  the  plaintiffs  obtained 
judgment. 

The  principal  question  which,  from  tliis  statement,  appears  to  be 
presented  by  the  record,  may  be  stated  thus:  Has  a  party  who  has 


152  WETHERBEE  V.    GREEN.  [CHAP.  IV. 

taken  the  property  of  another  in  good  faith,  and  in  reliance  upon  Q 
supposed  right,  without  intention  to  commit  wrong,  and  by  the  ex- 
penditure of  his  money  or  labor,  worked  upon  it  so  great  a  trans- 
formation as  that  which  this  timber  underwent  in  being  trans- 
formed from  standing  trees  into  hoops,  acquired  such  a  property 
therein  that  it  cannot  be  followed  into  his  hands  and  reclaimed  by 
the  o\\Tier  of  the  trees  in  its  improved  condition? 

The  objections  to  allowing  the  o^ner  of  the  trees  to  reclaim  the 
property  under  such  circumstances  are,  that  it  visits  the  involuntary 
WTong-doer  too  severely  for  his  unintentional  trespass,  and  at  the 
same  time  compensates  the  owTier  beyond  all  reason  for  the  injury  he 
has  sustained.  In  the  redress  of  private  injuries  the  law  aims  not  so 
much  to  punish  the  wrong-doer  as  to  compensate  the  sufferer  for 
his  injuries;  and  the  cases  in  which  it  goes  farther  and  inflicts  puni- 
tory or  vindictive  penalties  are  those  in  which  the  -wTong-doer  has 
committed  the  wrong  recklessly,  willfully,  or  mahciously,  and  under 
circumstances  presenting  elements  of  aggravation.  Where  vicious 
motive  or  reckless  disregard  of  right  are  not  involved,  to  inflict  upon 
a  person  who  has  taken  the  property  of  another,  a  penalty  equal  to 
twenty  or  thirty  times  its  value,  and  to  compensate  the  owTier  in  a 
proportion  equally  enormous,  is  so  opposed  to  all  legal  idea  of  justice 
and  right  and  to  the  rules  which  regulate  the  recovery  of  damages 
generally,  that  if  permitted  by  the  law  at  all,  it  must  stand  out  as  an 
anomaly  and  must  rest  upon  peculiar  reasons. 

As  a  general  rule,  one  whose  property  has  been  appropriated  by 
another  without  authority  has  a  right  to  follow  it  and  recover  the 
possession  from  any  one  who  may  have  received  it;  and  if,  in  the 
meantime,  it  has  been  increased  in  value  by  the  addition  of  labor  or 
money,  the  owner  miiy,  nevertheless,  reclaim  it,  provided  there  has 
been  no  destruction  of  substantial  identity.  So  far  the  authorities 
are  agreed.  A  man  cannot  generally  be  deprived  of  his  property 
except  by  his  own  voluntary  act  or  by  operation  of  law;  and  if  un- 
authorized parties  have  bestowed  expense  or  labor  upon  it,  that  fact 
cannot  constitute  a  bar  to  his  reclaiming  it,  so  long  as  identification 
is  not  impracticable.  But  there  must,  nevertheless,  in  reason  be  some 
limit  to  the  right  to  follow  and  reclaim  materials  which  have  under- 
gone a  process  of  manufacture.  Mr.  Justice  Blackstone  lays  down 
the  rule  very  broadly,  that  if  a  thing  is  changed  into  a  different 
species,  as  by  making  wine  out  of  another's  grapes,  oil  from  his 
olives,  or  bread  from  his  wheat,  the  product  belongs  to  the  new 
operator,  who  is  only  to  make  satisfaction  to  the  former  proprietor 
for  the  materials  converted.  2  Bl.  Com.  404.  We  do  not  under- 
stand this  to  be  disputed  as  a  general  proposition,  though  there  are 
some  authorities  which  hold  that,  in  the  case  of  a  '^\'illful  appropria- 
tion, no  extent  of  conversion  can  give  to  the  willful  trespasser  a  title 
to  the  property  so  long  as  the  original  materials  can  be  traced  in  the 


CHAP.  IV.]  WETHERBEE    V.    GREEN.  153 

improved  article.  The  distinction  thus  made  between  the  case  of  an 
appropriation  in  good  faith  and  one  based  on  intentional  wrong, 
appears  to  have  come  from  the  civil  law,  which  would  not  suffer  a 
party  to  acquire  a  title  by  accession,  founded  on  his  own  act,  unless 
he  had  taken  the  materials  in  ignorance  of  the  true  owner,  and  given 
them  a  form  which  precluded  their  being  restored  to  their  original 
condition.  2  Kent,  363.  While  many  cases  have  followed  the  rule 
as  broadly  stated  by  Blackstone,  others  have  adopted  the  severe 
rule  of  the  civil  law  where  the  conversion  was  in  willful  disregard  of 
right.  The  New  York  cases  of  Belts  v.  Lee,  5  Johns.  348;  Curtis  v. 
Groat,  6  Johns.  168;  and  Chandler  v.  Edson,  9  Johns.  362,  were  all 
cases  where  the  willful  trespasser  was  held  to  have  acquired  no 
property  by  a  very  radical  conversion,  and  in  Silsbury  v.  McCoon, 
3  N.Y.  378,  385,  the  whole  subject  is  very  fully  examined,  and 
RuGGLES,  J.,  in  delivering  the  opinion  of  the  com-t,  says  that  the 
common  law  and  the  civil  law  agree  "that  if  the  chattel  wrong- 
fully taken  come  into  the  hands  of  an  innocent  holder  who,  be- 
lieving himself  to  be  the  owner,  converts  the  chattel  into  a  thing 
of  different  species,  so  that  its  identity  is  destroyed,  the  original 
owner  cannot  reclaim  it.  Such  a  change  is  said  to  be  wrought  when 
wheat  is  made  into  bread,  olives  into  oil,  or  grapes  into  A\'ine.  In  a 
case  of  this  kind,  the  change  in  the  species  of  the  chattel  is  not  an 
intentional  wrong  to  the  original  owner.  It  is,  therefore,  regarded  as 
a  destruction  or  consumption  of  the  original  materials,  and  the  true 
owner  is  not  permitted  to  trace  the  identity  into  the  manufactured 
article,  for  the  purpose  of  appropriating  to  his  own  use  the  labor  and 
skill  of  the  innocent  occupant  who  wrought  the  change ;  but  he  is  put 
to  his  action  for  damages  as  for  a  thing  consumed,  and  may  recover 
its  value  as  it  was  when  the  conversion  or  consmnption  took  place"; 
and  further  on  he  says  of  the  civil  law,  with  which  the  common  law 
is  supposed  by  him  to  harmonize:  "The  acknowledged  principle 
of  the  civil  law  is  that  a  willful  WTong-doer  acquires  no  property  in 
the  goods  of  another  either  by  the  wrongful  taking,  or  by  any  change 
wrought  in  them  by  his  labor  or  skill,  however  great  that  change  may 
be.  The  new  product  in  its  improved  state  belongs  to  the  owner  of 
the  original  materials,  provided  it  be  proved  to  be  made  from  them; 
the  trespasser  loses  his  labor,  and  that  change  which  is  regarded  as  a 
destruction  of  the  goods,  or  an  alteration  of  their  identity  in  favor 
of  an  honest  possessor,  is  not  so  regarded  as  between  the  original 
owner  and  a  willful  violator  of  his  right  of  property."  In  further 
illustration  of  the  same  views  we  refer  to  Hyde  v.  Cookson,  21  Barb. 
104;  Martin  v.  Porter,  5  M.  &  W.  351;  Wild  v.  Holt,  9  M.  &  W.  672; 
Baker  v.  Wheeler,  8  Wend.  508;  Smjder  v.  Vaux,  2  Rawle,  427; 
Riddle  v.  Driver,  12  Ala.  590. 

It  does  not  become  necessary  for  us  to  consider  whether  the  case 
of  Silsbury  v.  McCoon,  3  N.Y.  378,  which  overruled  the  prior  de- 


154  WETHERBEE  V.    GREEN.  [CHAP.  IV. 

cisions  of  the  Supreme  Court  (reported  in  4  Denio,  425,  and  6  Hill, 
332),  has  not  recognized  a  right  in  the  owner  of  the  original  materials 
to  follow  them  mider  circumstances  when  it  would  not  be  permitted 
by  the  rule  as  recognized  by  the  authorities  generally.  That  was  the 
case  where  a  willful  trespasser  had  converted  corn  into  whisky,  and 
the  owner  of  the  com  was  held  entitled  to  the  manufactured  article. 
The  rule  as  given  by  Blackstone  would  confine  the  owner,  in  such 
case,  to  his  remedy  to  recover  damages  for  the  original  taking.  But 
we  are  not  called  upon  in  this  case  to  express  any  opinion  regarding 
the  rule  applicable  in  the  case  of  a  willful  trespasser,  since  the  au- 
thorities agi'ee  in  holding,  that  when  the  wrong  had  been  involun- 
tary, the  owner  of  the  original  materials  is  precluded,  by  the  civil 
law  and  common  law  alike,  from  following  and  reclaiming  the  prop- 
erty after  it  has  midergone  a  transformation  which  converts  it  into 
an  article  substantially  different. 

The  cases  of  confusion  of  goods  are  closely  analogous.  It  has  al- 
ways been  held  that  he  who,  without  fraud,  intentional  -v^Tong,  cfr 
recldess  disregard  of  the  rights  of  others,  mingled  his  goods  with 
those  of  another  person,  in  such  manner  that  they  could  not  be  dis- 
tinguished, should,  nevertheless,  be  protected  in  his  ownership  so  far 
as  the  circumstances  would  permit.  The  question  of  motive  here 
becomes  of  the  highest  importance;  for,  as  Chancellor  Kent  says,  if 
the  commingling  of  property  "was  willfully  made  without  mutual 
consent,  .  .  .  the  common  law  gave  the  entire  property,  without 
any  account,  to  him  whose  property  was  originally  invaded,  and  its 
distinct  character  destroyed.  Popham's  Rep.  38,  pi.  2.  If  A  will 
willfully  intermix  his  corn  or  hay  with  that  of  B,  or  casts  his  gold 
into  another's  crucible,  so  that  it  becomes  impossible  to  distinguish 
what  belonged  to  A  from  what  belonged  to  B,  the  whole  belongs  to 
B.  Popham's  Rep.  vb.  supra;  Warde  v.  Ayre,  2  Bulst.  323,"  2  Kent, 
364-5;  and  see  2  Bl.  Com.  404;  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  62; 
Gordon  v.  Jenney,  16  Mass.  465;  Treat  v.  Barber,  7  Conn.  280;  Bar- 
ron V.  Cohleigh,  11  N.H.  561;  Roth  v.  Wells,  29  N.Y.  486;  Willard  v. 
Rice,  11  Met.  493;  Jenkhis  v.  SteanJca,  19  Wis.  128;  Hesseltine  v. 
Stockwell,  30  Me.  237.  But  this  rule  only  applies  to  wrongful  or 
fraudulent  intermixtures.  There  may  be  an  intentional  intenningling 
and  yet  no  ^Tong  intended;  as  where  a  man  mixes  two  parcels  to- 
gether, supposing  both  to  be  his  own;  or,  that  he  was  about  to  mingle 
his  with  his  neighbor's,  by  agreement,  and  mistakes  the  parcel.  In 
such  cases,  which  may  be  deemed  accidental  intermixtures,  it  would 
be  unreasonable  and  unjust  that  he  should  lose  his  own  or  be  obliged 
to  take  and  pay  for  his  neighbor's,  as  he  would  have  been  under  the 
civil  law.  Morton,  J.,  in  Ryder  v.  Hathaway,  21  Pick.  305.  In  many 
cases  there  will  be  difficult}'  in  determining  precisely  how  he  can  be 
protected  with  due  regard  to  the  rights  of  the  other  party;  but  it  is 
clear  that  the  law  will  not  forfeit  his  property  in  consequence  of  the 


CHAP.  IV.]  WETHERBEE    V.    GREEN".  155 

accident  or  inadvertence,  unless  a  just  measure  of  redress  to  the 
other  party  renders  it  inevitable.  Story  on  Bailm.,  §  40;  Sedg.  on 
Dams.,  483. 

The  important  question  on  this  branch  of  the  case  appears  to  us 
to  be,  whether  standing  trees,  when  cut  and  manufactured  into  hoops, 
are  to  be  regarded  as  so  far  changed  in  character  that  their  identity 
can  be  said  to  be  destroyed  within  the  meaning  of  the  authorities. 
And  as  we  enter  upon  a  discussion  of  this  question,  it  is  evident  at 
once,  that  it  is  difficult,  if  not  impossible,  to  discover  any  invariable 
and  satisfactory  test  which  can  be  applied  to  all  the  cases  which 
arise  in  such  infinite  variety.  "  If  grain  be  taken  and  made  into  malt, 
or  money  taken  and  made  into  a  cup,  or  timber  taken  and  made 
into  a  house,  it  is  held  in  the  old  English  law  that  the  property  is  so 
altered  as  to  change  the  title.  Bro.,  tit.  Property,  pi.  23";  2  Kent, 
363.  But  cloth  made  into  garments,  leather  into  shoes,  trees  hewai 
or  sawed  into  timber,  and  iron  made  into  bars,  it  is  said  may  be 
reclaimed  by  the  owner  in  their  new  and  original  shape.  Sedg.  on 
Dams.,  484;  Snyder  v.  Vauz,  2  Rawle,  427;  Belts  v.  Lee,  5  Johns. 
348;  Curtis  v.  Groat,  6  Johns.  168;  Brown  v.  Sax;  7  Cow.  95;  Silsbury 
V.  McCoon,  4  Denio,  333,  per  Bronson,  J.;  Ibid.,  6  Hill,  426,  per 
Nelson,  Ch.  J.;  Ibid.,  3  N.Y.  386,  per  Ruggles,  J.  Some  of  the 
cases  place  the  right  of  the  former  owner  to  take  the  thing  in  its 
altered  condition  upon  the  question  whether  its  identity  could  be 
made  out  by  the  senses.  Year  Book  5,  H.  7,  fo.  15,  pi.  6;  4  Denio, 
335,  note.  But  this  is  obviously  a  very  unsatisfactory  test,  and  in 
many  cases  would  wholly  defeat  the  purpose  which  the  law  has  in 
view  in  recognizing  a  change  of  title  in  any  of  these  cases.  That 
purpose  is  not  to  establish  any  arbitrary  distinctions,  based  upon 
mere  physical  reasons,  but  to  adjust  the  redress  afforded  to  the  one 
party  and  the  penalty  inflicted  upon  the  other,  as  near  as  circum- 
stances will  permit,  to  the  rules  of  substantial  justice. 

It  may  often  happen  that  no  difficulty  will  be  experienced  in 
determining  the  identity  of  a  piece  of  timber  which  has  been  taken 
and  built  into  a  house;  but  no  one  disputes  that  the  right  of  the 
original  o^vner  is  gone  in  such  a  case.  A  particular  piece  of  wood 
might  perhaps  be  traced  without  trouble  into  a  church  organ,  or 
other  equally  valuable  article;  but  no  one  would  defend  a  rule  of 
law  which,  because  the  identity  could  be  determined  by  the  senses, 
would  permit  the  owner  of  the  wood  to  appropriate  a  musical  in- 
strument, a  hundred  or  a  thousand  times  the  value  of  his  original 
materials,  when  the  party  who,  under  like  circumstances,  has  doul)led 
the  value  of  another  man's  corn  by  converting  it  into  malt,  is  per- 
mitted to  retain  it,  and  held  liable  for  the  original  value  only.  Such 
distinctions  in  the  law  would  be  without  reason,  and  could  not  be 
tolerated.  When  the  right  to  tlie  improved  article  is  the  point  in 
issue,  the  question,  how  much  the  property  or  labor  of  each  has  con- 


156  WETHERBEE    V.    GREEN.  [CHAP.  IV. 

tributed  to  make  it  what  it  is,  must  always  be  one  of  first  importance. 
The  owner  of  a  beam  built  into  the  house  of  another  loses  his  prop- 
erty in  it,  because  the  beam  is  insignificant  in  value  or  importance 
as  compared  to  that  to  which  it  has  become  attached,  and  the  musi- 
cal instrument  belongs  to  the  maker  rather  than  to  the  man  whose 
timber  was  used  in  making  it,  —  not  because  the  timber  cannot  be 
identified,  but  because  in  bringing  it  to  its  present  condition  the 
value  of  the  labor  has  swallowed  up  and  rendered  insignificant  the 
value  of  the  original  materials.  The  labor,  in  the  case  of  the  musical 
instrument,  is  just  as  much  the  principal  thing  as  the  house  is  in  the 
other  case  instanced;  the  timber  appropriated  is  in  each  case  com- 
paratively unimportant. 

No  test  which  satisfies  the  reason  of  the  law  can  be  appHed  in  the 
adjustment  of  questions  of  title  to  chattels  by  accession,  unless  it 
keeps  in  \aew  the  circumstance  of  relative  values.  When  we  bear  in 
mind  the  fact  that  what  the  law  aims  at  is  the  accomplishment  of 
substantial  equity,  we  shall  readily  perceive  that  the  fact  of  the  value 
of  the  materials  having  been  increased  a  hundred  fold,  is  of  more 
"mportance  in  the  adjustment  than  any  chemical  change  or  mechani- 
cal transformation,  which,  however  radical,  neither  is  expensive  to 
the  party  making  it,  nor  adds  materially  to  the  value.  There  may 
be  complete  changes  with  so  little  improvement  in  value,  that  there 
could  be  no  hardship  in  giving  the  owner  of  the  original  materials 
the  improved  article;  but  in  the  present  case,  where  the  defendant's 
labor  —  if  he  shall  succeed  in  sustaining  his  offer  of  testimony  — 
vnll  appear  to  have  given  the  timber  in  its  present  condition  nearly 
all  its  value,  all  the  grounds  of  equity  exist  which  influence  the  courts 
in  recognizing  a  change  of  title  imder  any  circumstances. 

We  are  of  opinion  that  the  court  erred  in  rejecting  the  testimony 
offered.  The  defendant,  we  think,  had  a  right  to  show  that  he  had 
manufactured  the  hoops  in  good  faith,  and  in  the  belief  that  he  had 
the  proper  authority  to  do  so;  and  if  he  should  succeed  in  making 
that  showing,  he  was  entitled  to  have  the  jury  instructed  that  the 
title  to  the  timber  was  changed  by  a  substantial  change  of  identity, 
and  that  the  remedy  of  the  plaintiff  was  an  action  to  recover  damages 
for  the  unintentional  trespass. 

Note.  —  In  Eaton  v.  Langley,  65  Ark.  448,  the  court  said  (p.  457) : 
"The  value  of  the  cross-ties  in  controversy  was  twelve  and  a  half 
cents  a  tie.  The  value  of  each  in  the  tree  was  two  cents.  .  .  .  The 
difference  ...  is  not  so  great  as  to  make  the  value  of  the  latter,  as 
compared  with  that  of  the  former,  insignificant,  and  to  make  the 
appropriation  of  the  cross-ties  by  the  original  owner  to  his  o's\ti  use, 
without  compensation,  appear,  imder  the  circumstances,  gross  in- 
justice at  the  first  blush." 

In  Lewis  v.  Courtright,  77  Iowa,  190,  the   defendant,  acting  in 


CHAP.  IV.]  SILSBURY    V.    McCOON.  157 

good  faith,  cut  plaintiff's  grass,  and  made  it  into  hay.  The  plaintiff' 
failed  in  an  action  to  recover  the  hay.  "  The  value  of  the  grass  before 
it  was  cut  was  small;  some  of  the  evidence  tending  to  show  that  it 
was  but  eight  to  ten  cents  an  acre.  Each  acre  yielded  from  a  ton 
and  a  half  of  hay,  which  was  worth  in  stack  from  two  to  three  dollars 
per  ton." 

In  Lampton's  ExWs  v.  Preston^s  Ex'rs,  1  J.  J.  IMarsh.  (Ky.)  454, 
the  court  held  that  if  A,  acting  in  good  faith,  bm-nt  brick  out  of  B's 
clay,  the  bricks  belonged  to  B.  "It  is  not  the  excess  of  the  artificial 
over  the  natural  value,  but  the  degree  of  such  excess,  that  is  the  con- 
trolling principle  in  such  cases.  ...  It  is  not  disputed  that,  if  A 
make  cloth  out  of  the  wool  of  B,  or  a  table  or  a  boat  entirely  out  of 
the  timber  of  B,  though  the  value  of  the  new  species  exceeds  that 
of  the  material  more  than  twofold,  the  o'^Tier  of  the  material  is 
entitled  to  the  species."  See,  accord,  Baker  v.  Meisch,  29  Neb.  227. 

In  Strubhee  v.  Cincinnati  Railway,  78  Ky.  481,  the  com-t  held  that 
X  could  recover  certain  railroad  ties  from  C.  The  ties  were  made 
by  B  from  timber  standing  on  A's  land,  and  pm-chased,  in  good  faith, 
by  C  from  B.  The  timber  was  worth  in  the  tree  from  five  to  fifteen 
cents  per  stick,  and,  when  converted  into  cross-ties,  each  tie  was 
worth  343^  cents. 

In  Isle  Royale  Mining  Co.  v.  Hertin,  37  Mich.  332,  Judge  Cooley 
said  that  an  increase  of  value  from  $1.00  a  cord  to  $2.87 J^  per  cord 
was  not  sufficient  to  change  the  property,  in  favor  of  a  person  who 
had  in  good  faith  increased  the  value  of  the  wood. 

In  Louis  Werner  Stave  Company  v.  Pickering,  55  Texas  Civ.  App. 
632,  standing  timber  worth  $339  had  been  converted  into  staves 
worth  $1080.  This  was  held  sufficient  to  change  the  OTVTiership,  in 
favor  of  a  person  acting  in  good  faith. 

In  deliberating  as  to  the  soundness  of  the  doctrine  of  Wetherhee 
v.  Green,  the  student  should  also  deliberate  as  to  the  soundness  of 
the  doctrine  that  if  B,  acting  in  good  faith,  but  wdthout  the  au- 
thority of  A,  adds  value  to  A's  chattel,  and  A  repossesses  himself  of 
the  improved  chattel,  B  has  no  cause  of  action  against  A  for  the 
value  of  the  improvement.  See  Isle  Royale  Mining  Co.  v.  Hertin, 
37  Mich.  332;  Gates  v.  Rifle  Boom  Company,  70  Mich.  309;  Strubhee 
V.  Cincinnati  Railway,  78  Ky.  481,  488. 


SILSBT'RY  V.  McCOON. 

3  N.Y.  379.    1850. 

This  was  an  action  of  trover  for  a  quantitj''  of  whisky.  On  the  first 
trial  before  Willard.  circuit  judge,  at  the  Montgomery  circuit,  in 
May,  1843,  the  plaintiffs  were  nonsuited.  The  supreme  court  on  bill 


158  SILSBURY    V.    McCOON.  [cHAP.  IV. 

of  exceptions  set  aside  the  nonsuit,  and  ordered  a  new  trial.  (See  6 
Hill,  425.)  The  case  was  again  tried  in  November,  1844,  before  the 
same  judge.  On  that  trial  it  was  proved,  that  one  Hackney,  a  deputy 
of  the  sheriff  of  Montgomery  Countj^,  on  the  22d  of  March,  1842,  by 
virtue  of  Sifi.fa.  issued  on  a  judgment  in  the  supreme  court  in  favor 
of  McCoon  and  Sherman,  the  defendants,  against  Uriah  Wood,  sold 
the  whisky  in  question,  being  about  twelve  hundred  gallons,  having 
made  a  previous  levy  thereon;  and  that  upon  the  sale  the  defendants 
became  the  purchasers,  and  aftei"wards  converted  it  to  their  own 
use.  The  whisky  was  levied  on  and  sold  at  the  distillery  of  the 
plaintiffs,  who  forbade  the  sale. 

The  plaintiffs  having  rested,  the  defendants  offered  to  prove,  in 
their  defence,  that  the  whisky  was  manufactured  from  corn  belong- 
ing to  Wood,  the  defendant  in  the  execution;  that  the  plaintiffs  had 
taken  the  com  and  manufactured  it  into  whisky  without  any  au- 
thority from  Wood,  and  knowing  at  the  time  they  took  the  corn  that 
it  belonged  to  him.  The  plaintiffs'  counsel  objected  to  this  evidence, 
insisting  that  Wood's  title  to  the  corn  was  extiyiguished  by  its  con- 
version into  whisky.  The  circuit  judge  sustained  the  objection  and 
refused  to  receive  the  e\ddence.  The  defendants'  counsel  excepted. 
The  plaintiffs  had  a  verdict  for  the  value  of  the  whisky,  which  the 
supreme  court  refused  to  set  aside.  (See  4  Denio,  332.)  After  judg- 
ment the  defendants  brought  error  to  this  court,  where  the  cause  was 
first  argued  by  Mr.  Hill,  for  the  plaintiffs  in  error,  and  Mr.  Rey- 
nolds, for  the  defendants  in  error,  in  September,  1848.  The  judges 
being  divided  in  opinion,  a  re-argument  was  ordered,  which  came  on 
in  January  last. 

RuGGLES,  J.  It  is  an  elementarj^  principle  in  the  law  of  all  civ- 
ilized communities,  that  no  man  can  be  deprived  of  his  property, 
except  by  his  own  voluntary  act,  or  by  operation  of  law.  The  thief 
who  steals  a  chattel,  or  the  trespasser  who  takes  it  by  force,  acquires 
no  title  by  such  wrongful  taking.  The  subsequent  possession  by  the 
thief  or  the  trespasser  is  a  continuing  trespass ;  and  if  during  its  con- 
tinuance, the  wrongdoer  enhances  the  value  of  the  chattel  by  labor 
and  skill  bestowed  upon  it,  as  by  sawing  logs  into  boards,  splitting 
timber  into  rails,  making  leather  into  shoes,  or  iron  into  bars,  or  into 
a  tool,  the  manufactured  article  still  belongs  to  the  owner  of  the 
original  material,  and  he  may  retake  it  or  recover  its  improved 
value  in  an  action  for  damages.  And  if  the  ■v\Tongdoer  sell  the  chat- 
tel to  an  honest  purchaser  having  no  notice  of  the  fraud  by  which 
it  was  acquired,  the  purchaser  obtains  no  title  from  the  trespasser, 
because  the  trespasser  had  none  to  give.  The  owner  of  the  original 
material  may  still  retake  it  in  its  improved  state,  or  he  may  recover 
its  improved  value.  The  right  to  the  improved  value  in  damages 
is  a  consequence  of  the  continued  ownership.  It  would  be  absurd 
to  say  that  the  original  owner  may  retake  the  thing  by  an  action 


CHAr.  IV.]  SILSBURY    V.    McCOON.  159 

of  replevin  in  its  improved  state,  and  j'et  that  he  may  not,  if  put  to 
his  action  of  trespass  or  trover,  recover  its  improved  value  in  dam- 
ages. Thus  far,  it  is  conceded  that  the  common  law  agrees  with  the 
civil. 

They  agree  in  another  respect,  to  wit,  that  if  the  chattel  ■wTong- 
fully  taken,  afteri\'ards  come  into  the  hands  of  an  innocent  holder 
who  believing  himself  to  be  the  o"nTier,  converts  the  chattel  into  a 
thing  of  different  species  so  that  its  identity  is  destroyed,  the  original 
owmer  cannot  reclaim  it.  Such  a  change  is  said  to  be  wrought  when 
wheat  is  made  into  bread,  olives  into  oil,  or  grapes  into  wine.  In  a 
case  of  this  kind  the  change  in  the  species  of  the  chattel  is  not  an 
intentional  wi'ong  to  the  original  o^Aaier.  It  is  therefore  regarded  as 
a  destruction  or  consumption  of  the  original  materials,  and  the  true 
owner  is  not  permitted  to  trace  their  identity  into  the  manufactm-ed 
article,  for  the  purpose  of  appropriating  to  his  own  use  the  labor  and 
skill  of  the  innocent  occupant  who  wrought  the  change;  but  he  is 
put  to  his  action  for  damages  as  for  a  thing  consumed,  and  may  re- 
cover its  value  as  it  was  when  the  conversion  or  consumption  took 
place. 

There  is  great  confusion  in  the  books  upon  the  question  what  con- 
stitutes change  of  identity.  In  one  case  (5  Hen.  7,  fol.  15),  it  is  said 
that  the  o^ner  may  reclaim  the  goods  so  long  as  they  may  be  knowTi, 
or  in  other  words,  ascertained  by  inspection.  But  this  in  many  cases 
is  by  no  means  the  best  evidence  of  identity;  and  the  examples  put  by 
way  of  illustration  serve  rather  to  disprove  than  to  establish  the  rule. 
The  court  say  that  if  gi'ain  be  made  into  mall,  it  cannot  be  reclaimed 
by  the  owner  because  it  cannot  be  knoT\'n.  But  if  cloth  be  made  into 
a  coat,  a  tree  into  squared  timber,  or  iron  into  a  tool,  it  may.  Now 
as  to  the  cases  of  the  coat  and  the  timber,  they  may  or  may  not  be 
capable  of  identification  by  the  senses  merely,  and  the  rule  is  entirely 
uncertain  in  its  application;  and  as  to  the  iron  tool,  it  certainly  can 
not  be  identified  as  made  of  the  original  material,  without  other 
evidence.  This  illustration,  therefore,  contradicts  the  rule.  In  an- 
other case  (Moore's  Rep.  20),  trees  were  made  into  timber  and  it 
was  adjudged  that  the  owner  of  the  trees  might  reclaim  the  timber, 
"because  the  greater  part  of  the  substance  remained."  But  if  this 
were  the  true  criterion  it  would  embrace  the  cases  of  wheat  made 
into  bread,  milk  into  cheese,  grain  into  malt,  and  others  which  are 
put  in  the  books  as  examples  of  a  change  of  identity.  Other  writers 
say  that  when  the  thing  is  so  changed  that  it  can  not  be  reduced 
from  its  new  form  to  its  former  state,  its  identity  is  gone.  But  this 
would  include  many  cases  in  which  it  has  been  said  by  the  courts 
that  the  identity  is  not  gone;  as  the  case  of  leather  made  into  a  gar- 
ment, logs  into  timber  or  boards,  cloth  into  a  coat,  etc.  There  is 
therefore  no  definite  settled  rule  on  this  question;  and  although  the 
want  of  such  a  rule  may  create  embarrassment  in  a  case  in  which 


160  SILSBURY    V.    McCOON.  [CHAP.  IV. 

the  owner  seeks  to  reclaim  his  property  from  the  hands  of  an  honest 
possessor,  it  presents  no  difficulty  where  he  seeks  to  obtain  it  from 
the  wrongdoer,  provided  the  common  law  agrees  with  the  civil  in 
the  principle  applicable  to  such  a  case. 

The  acknowledged  principle  of  the  civil  law  is  that  a  ^v^lful  wrong- 
doer acquires  no  property  in  the  goods  of  another,  either  by  the 
wrongful  taking  or  by  any  change  wrought  in  them  by  his  labor  or 
skill,  however  great  that  change  may  be.  The  new  product,  in  its 
improved  state,  belongs  to  the  owner  of  the  original  materials,  pro- 
vided it  be  proved  to  have  been  made  from  them;  the  trespasser 
loses  his  labor,  and  that  change  which  is  regarded  as  a  destruction 
of  the  goods,  or  an  alteration  of  their  identity  in  favor  of  an  honest 
possessor,  is  not  so  regarded  as  between  the  original  o^vner  and  a 
wilful  violator  of  his  right  of  property. 

These  principles  are  to  be  found  in  the  Digest  of  Justinian  (lib. 
10,  tit.  4,  leg.  12,  §  3).  "If  an}^  one  shall  make  -wane  with  my  grapes, 
oil  with  my  olives,  or  garments  with  my  wool,  knowing  they  are  not 
his  own,  he  shall  be  compelled  by  action  to  produce  the  said  wine, 
oil  or  garments,"  So  in  Vinnius'  Institutes,  tit.  1,  pi.  25.  ''He 
who  knovfs  the  material  is  another's  ought  to  be  considered  in  the 
same  light  as  if  he  had  made  the  species  in  the  name  of  the  owner, 
to  whom  also  he  is  to  be  understood  to  have  given  his  labor." 

The  same  principle  is  stated  by  Puffendorf  in  his  Law  of  Nature 
and  of  Nations  (b.  4,  ch.  7,  §  10)  and  in  Wood's  Institutes  of  the 
Civil  Law,  p.  92,  which  are  cited  at  large  in  the  opinion  of  Jewett,  J., 
delivered  in  this  case  in  the  supreme  court  (4  Denio,  338)  and  vrhich 
it  is  unnecessary  here  to  repeat.  In  Brown's  Civil  and  Admiralty 
Law,  p.  240,  the  writer  states  the  civil  law  to  be  that  the  original 
owTier  of  anji:.hing  improved  by  the  act  of  another,  retained  his 
ownership  in  the  thing  so  improved,  unless  it  was  changed  into  a 
different  species;  as  if  his  grapes  were  made  into  wine,  the  wdne  be- 
longed to  the  maker,  who  was  only  obliged  to  pay  the  owner  for  the 
value  of  his  grapes.  The  species,  however,  must  be  incapable  of  being 
restored  to  its  ancient  form;  ajid  the  materials  must  have  been  taken 
in  ignorance  of  their  being  the  property  of  another. 

But  it  was  thought  in  the  court  below  that  this  doctrine  had  never 
been  adopted  into  the  common  law,  either  in  England  or  here;  and 
the  distinction  between  a  wilful  and  an  involuntary  wrongdoer 
herein  before  mentioned,  was  rejected  not  only  on  that  ground  but 
also  because  the  rule  was  supposed  to  be  too  harsh  and  rigorous 
against  the  wrongdoer. 

It  is  true  that  no  case  has  been  found  in  the  English  books  in 
which  that  distinction  has  been  expressly  recog-nized ;  but  it  is  equally 
true  that  in  no  case  until  the  present  has  it  been  repudiated  or  denied. 
The  common  law  on  this  subject  was  evidently  borrowed  from  the 
Roman  at  an  early  day;  and  at  a  period  when  the  common  law  fur- 


CHAP,  rV.J  SILSBURY    V.    McCOON.  161 

nished  no  rule  whatever  in  a  case  of  this  kind.  Bracton,  in  his  treatise 
compiled  in  the  reign  of  Henry  III,  adopted  a  portion  of  Justinian's 
Institutes  on  this  subject  without  noticing  the  distinction;  and 
Blackstone,  in  liis  Commentaries,  vol.  2,  p.  404,  in  stating  what  the 
Roman  law  was,  follows  Bracton;  but  neither  of  these  writers  inti- 
mate that  on  the  point  in  question  there  is  any  difference  between 
the  civil  and  the  common  law.  The  authorities  referred  to  by  Black- 
stone  in  support  of  his  text  are  three  only.  The  first  in  Brooke's 
Abridgment,  tit.  Property,  23,  is  the  case  from  the  Year  Book,  5  H. 
7,  fol.  15  (translated  in  a  note  to  4  Denio,  335),  in  which  the  owner 
of  leather  brought  trespass  for  taking  slippers  and  boots,  and  the 
defendant  pleaded  that  he  was  the  o^\Tier  of  the  leather  and  bailed 
it  to  J.  S.  who  gave  it  to  the  plaintiff,  who  manufactm-ed  it  into 
slippers  and  boots,  and  the  defendant  took  them  as  he  lawfully 
might.  The  plea  was  held  good  and  the  title  of  the  o-\vner  of  the 
leather  unchanged.  The  second  reference  is  to  a  case  in  Sir  Francis 
Moore's  reports,  p.  20,  in  which  the  action  was  trespass  for  taking 
timber,  and  the  defendant  justified  on  the  ground  that  A  entered 
on  his  land  and  cut  down  trees  and  made  timber  thereof,  and  carried 
'.t  to  the  place  where  the  trespass  was  alleged  to  have  been  com- 
mitted, and  afterwards  gave  it  to  the  plaintiff,  and  that  the  defend- 
ant therefore  took  the  timber  as  he  lav^^ully  might.  In  these  cases 
the  chattels  had  passed  from  the  hands  of  the  original  trespasser  into 
the  hands  of  a  third  person;  in  both  it  was  held  that  the  title  of  the 
original  o"«Tier  was  unchanged,  and  that  he  had  a  right  to  the  prop- 
erty in  its  improved  state  against  the  third  person  in  possession. 
They  are  in  conformity  with  the  rule  of  the  civil  law;  and  certainly 
fail  to  prove  any  difference  between  the  civil  and  the  common  law 
on  the  point  in  question.  The  third  case  cited  is  from  Popham's 
reports,  p.  38,  and  was  a  case  of  confusion  of  goods.  The  plaintiff 
voluntarily  mixed  his  own  hay  with  the  hay  of  the  defendant,  who 
carried  the  whole  away,  for  which  he  was  sued  in  trespass;  and  it  was 
adjudged  that  the  whole  should  go  to  the  defendant;  and  Blackstone 
refers  to  this  case  in  support  of  his  text,  that  "our  law  to  guard 
against  fraud  gives  the  entire  property,  without  any  account,  to  him 
whose  original  dominion  is  invaded  and  endeavored  to  be  rendered 
uncertain  without  his  own  consent."  The  civil  law  in  such  a  case 
would  have  required  him  who  retained  the  whole  of  the  mingled 
goods  to  account  to  the  other  for  his  share  (Just.  Inst.  lib.  2,  tit.  1, 
§  28),  and  the  common  law  in  this  particular  appears  to  be  more 
rigorous  than  the  civil ;  and  there  is  no  good  reason  why  it  should  l)e 
less  so  in  a  case  like  that  now  in  hand,  where  the  necessity  of  guard- 
ing against  fraud  is  even  greater  than  in  the  case  of  a  mingling  of 
goods,  because  the  cases  are  likely  to  be  of  more  frequent  occurrence. 
Even  this  liability  to  account  to  him  whose  conduct  is  fraudulent, 
seems  by  the  civil  law  to  be  limited  to  cases  in  which  the  goods  are  of 


162  SILSBURY    V.    McCOON.  [CHAP.  W. 

such  a  nature  that  they  may  be  divided  into  shares  or  portions,  ac- 
cording to  the  original  right  of  the  parties;  for  by  that  law  if  A. 
obtain  by  fraud  the  parchment  of  B.  and  write  upon  it  a  poem,  or 
wrongful! J'-  take  his  tablet  and  paint  thereon  a  picture,  B.  is  entitled 
to  the  v^Titten  parchment  and  to  the  painted  tablet,  ■v\-ithout  ac- 
counting for  the  value  of  the  writing  or  of  the  picture.  Just.  Inst.  lib. 
2,  tit.  1,  §§  23,  24.  Neither  Bracton  nor  Blackstone  have  pointed 
out  any  difference  except  in  the  case  of  confusion  of  goods  between 
the  common  law  and  the  Roman,  from  which  on  this  subject  our 
lavv^  has  mainly  derived  its  principles. 

So  long  as  property  wrongfully  taken  retains  its  original  form  and 
substance,  or  may  be  reduced  to  its  original  materials,  it  belongs, 
according  to  the  admitted  principles  of  the  common  law,  to  the 
original  owner,  without  reference  to  the  degree  of  improvement,  or 
the  additional  value  given  to  it  by  the  labor  of  the  -^Tongdoer.  Nay 
more,  this  rule  holds  good  against  an  innocent  purchaser  from  the 
wrongdoer,  although  its  value  be  increased  an  hundred  fold  by  the 
labor  of  the  pm-chaser.  This  is  a  necessary  consequence  of  the  con- 
tinuance of  the  original  ownership. 

There  is  no  satisfactory  reason  why  the  "WTongful  conversion  of 
the  original  materials  into  an  article  of  a  different  name  or  a  different 
species  should  work  a  transfer  of  the  title  from  the  true  owner  to  the 
trespasser,  provided  the  real  identity  of  the  thing  can  be  traced  by 
evidence.  The  difficulty  of  proving  the  identity  is  not  a  good  reason. 
It  relates  merely  to  the  convenience  of  the  remedy,  and  not  at  all  to 
the  right.  There  is  no  more  difficulty  or  uncertainty  in  proving  that 
the  whisky  in  question  was  made  of  Wood's  com,  than  there  would 
have  been  in  proving  that  the  plaintiff  had  m^ade  a  cup  of  his  gold, 
or  a  tool  of  his  iron ;  and  yet  in  those  instances,  according  to  the  Eng- 
lish cases,  the  proof  would  have  been  unobjectionable.  In  all  cases 
where  the  new  product  can  not  be  identified  by  mere  inspection,  the 
original  material  must  be  traced  by  the  testim-ony  of  witnesses  from 
hand  to  hand  through  the  process  of  transformation. 

Again.  The  court  below  seem  to  have  rejected  the  rule  of  the  civil 
law  applicable  to  this  case,  and  to  have  adopted  a  principle  not  here- 
tofore kno-wn  to  the  common  law;  and  for  the  reason  that  the  rule 
of  the  civil  law  was  too  rigorous  upon  the  wrongdoer,  in  depriving 
him  of  the  benefit  of  his  labor  bestowed  upon  the  goods  WTongfuUy 
taken.  But  we  think  the  civil  law  in  this  respect  is  in  conformity  not 
only  with  plain  principles  of  morality,  but  supported  by  cogent  rea- 
sons of  public  policy;  while  the  rule  adopted  by  the  comi:  below  leads 
to  the  absurdity  of  treating  the  wilful  trespasser  with  gi'eater  kind- 
ness and  mercy  than  it  shows  to  the  innocent  possessor  of  another 
man's  goods.  A  single  example  may  suffice  to  prove  this  to  be  so. 
A  trespasser  takes  a  quantity  of  iron  ore  belonging  to  another  and 
converts  it  into  iron,  thus  changing  the  species  and  identity  of  the 


CHAP.  IV.]  SILSBURY    V.    McCOON.  163 

article:  the  owner  of  the  ore  may  recover  its  vahie,  in  trover  or  tres- 
pass; but  not  the  value  of  the  iron,  because  under  the  rule  of  the 
court  below  it  would  be  unjust  and  rigorous  to  deprive  the  trespasser 
of  the  value  of  his  labor  in  the  transmutation.  But  if  the  same  tres- 
passer steals  the  iron  and  sells  it  to  an  innocent  puixhaser,  who 
works  it  into  cutlery,  the  owner  of  the  iron  may  recover  of  the  pur- 
chaser the  value  of  the  cutlery,  because  by  this  process  the  original 
material  is  not  destroyed,  but  remains,  and  may  be  reduced  to  its 
former  state;  and  according  to  the  rule  adopted  by  the  com-t  below 
as  to  the  change  of  identity  the  original  ownership  remains.  Thus 
the  innocent  purchaser  is  deprived  of  the  value  of  his  labor,  while 
the  guilty  trespasser  is  not. 

The  rule  adopted  by  the  com-t  below  seems,  therefore,  to  be  ob- 
jectionable, because  it  operates  unequally  and  unjustly.  It  not  onlj 
divests  the  true  o"\Amer  of  his  title,  without  his  consent;  but  it  obliter- 
ates the  distinction  maintained  by  the  civil  law,  and  as  we  think  by 
the  common  law,  between  the  guilty  and  the  innocent ;  and  abolishes 
a  salutary  check  against  violence  and  fraud  upon  the  rights  of  prop- 
erty. 

We  think,  moreover,  that  the  law  on  this  subject  has  been  settled 
by  judicial  decisions  in  this  country.  In  Belts  v.  Lee,  5  John.  349,  it 
was  decided  that  as  against  a  trespasser  the  original  owner  of  the 
property  may  seize  it  in  its  new  shape,  whatever  alteration  of  form 
it  may  have  undergone,  if  he  can  prove  the  identity  of  the  original 
materials.  That  was  a  case  in  which  the  defendant  had  cut  down  the 
plaintiff's  trees,  and  made  them  into  shingles.  The  property  could 
neither  be  identified  by  inspection,  nor  restored  to  its  original  form ; 
but  the  plaintiff  recovered  the  value  of  the  shingles.  So  in  Curtis  v. 
Groat,  6  John.  169,  a  trespasser  cut  wood  on  another's  land  and  con- 
verted it  into  charcoal.  It  was  held  that  the  charcoal  still  belonged 
to  the  owner  of  the  wood.  Here  was  a  change  of  the  wood  into  an 
article  of  different  kind  and  species.  No  part  of  the  substance  of  the 
wood  remained  in  its  original  state;  its  identity  could  not  be  ascer- 
tained by  the  senses,  nor  could  it  be  restored  to  what  it  originally 
was.  That  case  distinctly  recognizes  the  principle  that  a  wilful  tres- 
passer can  not  acquire  a  title  to  property  merely  by  changing  it  from 
one  species  to  another.  And  the  late  Chancellor  Kent,  in  his  Com- 
mentaries (vol.  2,  p.  363),  declares  that  the  English  law  will  not  al- 
low one  man  to  gain  a  title  to  the  property  of  another  upon  the 
principle  of  accession,  if  he  took  the  other's  property  wilfully  as  a 
trespasser:  and  that  it  was  settled  as  early  as  the  time  of  the  Year 
Books,  that  whatever  alteration  of  form  any  property  had  under- 
gone, the  o^vner  might  seize  it  in  its  new  shape,  if  he  could  prove  the 
identity  of  the  original  materials. 

The  same  rule  has  been  adopted  in  Pennsylvania.  Snyder  v. 
Vaux,  2  Ptawle,  427.  And  in  Maine  and  Massachusetts  it  has  been 


164  SILSBURT    V.    McCOON.  [CHAP.  FV. 

applied  to  a  wilful  intermixture  of  goods.  Ryder  v.  Hathaway,  21 
Pick.  304,  305;  Wingate  v.  Smith,  7  Shep.  287;  Willard  v.  Rice,  11 
Mete.  493. 

We  are  therefore  of  opinion  that  if  the  plaintiffs  below  in  convert- 
ing the  com  into  whisky  knew  that  it  belonged  to  Wood,  and  that 
they  were  thus  using  it  in  violation  of  his  right,  they  acquired  no 
title  to  the  manufactured  article,  which  although  changed  from  the 
original  material  into  another  of  different  nature,  yet  being  the 
actual  product  of  the  com,  still  belonged  to  Wood.  The  evidence 
offered  by  the  defendants  and  rejected  by  the  circuit  judge  ought  to 
have  been  admitted. 

The  right  of  Wood's  creditors  to  seize  the  whisky  by  their  execu- 
tion is  a  necessary  consequence  of  Wood's  ownership.  Their  right 
is  paramount  to  his,  and  of  course  to  his  election  to  sue  in  trover  or 
trespass  for  the  com. 

The  judgment  of  the  supreme  court  should  be  reversed  and  a  new 
trial  ordered. 

Gardiner,  Jewett,  Hurlbut  and  Pratt,  Js.,  concurred. 

Bronson,  Ch.  J.  Two  very  able  arguments  here,  against  the 
opinion  which  I  delivered  when  the  case  was  before  the  supreme 
court  (4  Denio,  332),  have  only  served  to  confirm  me  in  the  conclu- 
sion at  which  I  then  arrived.  I  shall  add  but  little  now  to  what  I 
said  on  the  former  occasion. 

The  owner  may,  as  a  general  rule,  follow  and  retake  the  property 
of  which  he  has  been  wrongfully  deprived  so  long  as  the  same  thing 
I'^mains,  though  it  ma^^  have  been  changed  in  form_  and  value  by  the 
labor  and  skill  of  the  ^\Tongdoer.  But  when,  as  m  this  case,  the  iden- 
tity of  the  thing  has  been  destroyed  by  a  chemical  process,  so  that 
the  senses  can  no  longer  take  cognizance  of  it  —  when  it  has  not 
only  changed  its  form  and  appearance,  but  has  so  combined  with 
other  elements  that  it  has  ceased  to  be  the  same  tiling,  and  become 
something  else,  the  o'^mer  can,  I  think,  follow  it  no  longer:  his  remedy 
is  an  action  for  damages.  Such  I  take  to  be  the  rule  of  the  common 
law;  and  that  is  our  law. 

The  rule  for  which  the  defendants  contend,  tnat  in  the  case  of  a 
wilful  trespass  the  OAvner  may  follow  and  retake  his  property  after 
it  has  been  changed  into  a  thing  of  a  different  species  —  that  he  may 
trace  corn  into  whisky,  and  take  the  new  product  —  is  open  to 
several  objections.  First:  it  would  be  nearly  or  quite  impossible  to 
administer  such  a  rule  in  trials  by  jury.  Second :  the  rule  would  often 
work  injustice,  bj^  going  bej'^ond  the  proper  measure  of  either  redress 
or  punishment;  while  an  action  for  damages  would  render  exact  jus- 
tice to  both  parties.  It  is  very  true  that  a  wilful  trespasser  should  be 
punished :  but  that  proves  nothing.  All  agree  that  he  should  be  made 
to  suffer;  but  the  mode  and  measure  of  punishment  are  questions 


CHAP.  rV.]  SILSBURY    V.    McCOON.  165 

which  still  remain.  If  one  has  knowangly  taken  six  pence  worth  of 
his  neighbor's  goods  as  a  trespasser,  he  should  neither  be  imprisoned 
for  life,  nor  should  he  forfeit  a  thousand  dollars.  We  should  not  lose 
sight  of  the  fact,  that  the  rule  now  to  be  established  is  one  for  future 
as  well  as  present  use;  and  it  may  work  much  greater  injustice  in 
other  cases  than  it  can  in  this.  Third:  there  is  no  authority  at  the 
common  law  for  following  and  retaking  the  new  product  in  a  case 
like  this.  I  make  the  remark  with  the  more  confidence,  because  the 
very  diligent  counsel  for  the  defendants,  after  having  had  several 
years,  pending  this  controversy,  for  research,  has  only  been  able  to 
produce  some  dicta  of  a  single  jurist,  without  so  much  as  one  com- 
mon-law adjudication  in  support  of  the  rule  for  which  he  contends. 
He  is  driven  to  the  civil  law;  and  then  the  argument  is,  that  because 
we,  in  common  with  the  civilians,  allow  the  owner  to  retake  his  prop- 
erty in  certain  cases,  we  must  be  deemed  to  have  adopted  the  rule  of 
the  civil  law  on  this  subject  in  its  whole  extent.  But  that  is  a  non 
seqidtur.  It  often  happens  that  our  laws  and  those  of  the  Romans 
—  and,  indeed,  of  all  civilized  nations  —  are  found  to  agree  in  some 
particulars,  while  they  are  widely  different  in  others;  and  this  is  true 
of  laws  relating  to  a  single  subject.  There  is  no  force,  therefore,  in 
the  argument,  that  because  our  law  touching  this  matter  is  to  some 
extent  like  the  civil  law,  it  may  be  presumed  that  the  two  systems 
are  alike  in  every  particular.  And  clearly,  the  burden  of  showing 
that  the  Roman  law  is  our  law,  lies  on  those  who  affirm  that  fact. 
There  is  not  only  the  absence  of  any  common-law  adjudication  in 
favor  of  the  rule  for  which  the  defendants  contend,  but  in  one  of  the 
earliest  cases  on  the  subject  to  be  found  in  our  books  (Year  Book,  5 
H.  7,  fol.  15;  4  Denio,  335,  note),  the  court  plainly  recognized  the 
distinction  which  has  been  mentioned,  and  admitted  that  the  owner 
could  not  retake  the  property  after  its  identity  had  been  destroyed 
and  "grain  taken  and  malt  made  of  it"  was  given  as  an  example. 

There  are  many  cases  where  the  title  to  a  personal  chattel  may 
be  turned  into  a  mere  right  of  action,  wdthout  the  consent  of  the 
owner,  although  the  thing  was  taken  by  a  wilful  trespasser,  or  even 
by  a  thief.  If  a  man  steal  a  piece  of  timber,  and  place  it  as  a  beam  or 
rafter  in  his  house;  or  a  nail,  and  drive  it  into  his  ship;  or  paint,  and 
put  it  upon  his  carriage,  the  owner  can  not  retake  his  goods,  but  is 
put  to  his  action  for  damages;  and  this  is  so  in  the  civil  as  well  as  at 
the  common  law.  If  a  thief  take  water  from  another's  cistern,  and 
use  it  in  making  beer;  or  salt,  and  use  it  in  pickling  pork;  or  fuel,  and 
use  it  in  smoking  hams,  I  suppose  no  one  will  say,  that  the  o'v\Tier  of 
the  water,  the  salt  or  the  fuel  may  seize  the  beer,  the  pork  or  the 
hams.  And  there  is  no  better  reason  for  giving  him  the  new  product, 
,  where  sand  is  made  into  glass,  malt  into  beer,  coal  into  gas,  or  grain 
into  whisky.  In  the  case  now  before  us,  the  civilians  would  not  go  so 
far  as  to  say,  that  the  owner  of  the  grain  might  take  the  swine  which 


166  PULCIFER    V.    PAGE.  [CHAP.  IV. 

were  fattened  on  the  refuse  of  the  grain  after  it  had  gone  through  the 
process  of  distillation.  And  yet  that  would  hardly  be  more  unjust 
or  absurd  than  it  would  be  to  give  him  the  whisky.  There  must  be  a 
limit  somewhere;  and  I  know  of  none  which  is  more  safe,  practical 
and  just  than  that  which  allows  the  owner  to  follow  a  chattel  until 
it  has  either  been  changed  into  a  different  species,  or  been  adjoined 
to  something  else,  which  is  the  principal  thing;  and  stops  there. 
Thus  far  our  courts  have  gone,  and  there  they  have  stopped.  We 
have  neither  precedent  nor  reason  in  favor  of  taking  another  step; 
and  I  can  not  take  it. 

Judge  Harris  agrees  with  me  in  the  opinion  that  the  judgment  of 
the  supreme  court  is  right,  and  should  be  affirmed. 

Taylor,  J.,  did  not  hear  the  argument,  and  gave  no  opinion. 

Judgment  reversed. 


PULCIFER  V.   PAGE. 

32  Maine,  404.     1851. 

Trespass  for  an  iron  chain,  which  each  of  the  parties  claimed  to 
own. 

The  evidence  tended  to  show,  tJiat  each  of  the  parties  had  a  chain; 

—  that  each  chain  had  been  broken  into  several  pieces;  that  the  plain- 
tiff, without  the  consent  or  knowledge  of  the  defendant,  carried  all 
the  pieces  to  a  blacksmith,  and  had  them  made  up  into  two  chains; 

—  and  that  the  defendant  carried  away  one  of  them  into  which  some 
part  of  his  o\\ai  chain  had  been  incorporated.  It  was  for  this  chain, 
that  this  suit  is  brought. 

The  judge  instructed  the  jury  that  if  the  plaintiff  had  only  incor- 
porated into  this  chain  some  small  portion  of  the  defendant's  chain 
without  his  consent,  not  exceeding  two  or  three  links,  it  would  not 
thereby  become  the  property  of  the  defendant.  To  this  ruling  the 
defendant  excepted. 

Woodman,  for  the  defendant.  The  charge  of  the  judge  was  errone- 
ous in  instructing  the  jury,  that  the  property  of  the  chain  depended 
upon  the  quantity  of  the  defendant's  chain,  which  the  plaintiff  had 
incorporated  into  the  one  in  dispute.  The  right  of  property  in  the 
chain  as  a  whole  or  as  to  parts  of  it,  depended  rather  upon  the  fact 
that  the  mixture  was  made  without  the  defendant's  consent  or  knowl- 
edge by  the  plaintiff,  and  upon  the  manner  and  motive  of  doing  it. 

Howard,  J.  This  case  presents  a  question  of  acquisition  of 
property  by  accession,  but  does  not  involve  an  inquiry  concerning 
the  admixture  or  confusion  of  goods.  It  is  a  general  rule  of  law,  that 
if  the  materials  of  one  person  are  united  to  the  materials  of  another, 
by  labor,  forming  a  joint  product,  the  owner  of  the  principal  materials 
will  acquire  the  right  of  property  in  the  whole,  by  right  of  accession. 


CHAP.  IV.]  RICKETTS    V.    DORREL.  167 

This  was  a  rule  of  the  Roman  and  of  the  English  law,  and  has  been 
adopted,  as  it  is  understood,  in  the  United  States,  generally.  Dig.  6, 
1,61;  Bracton  de  acq.  rerum  dom.  B.  2,  c.  2,  §  3,  4;  Molloy,  B.  2,  c.  1, 
§  7;  Pothier,  Trait  du  droit  de  propriete,  L.  1,  c.  2,  art.  3,  Nos.  169- 
180;  2  Black.  Com.  404;  1  Bro.  Civil  Law,  241;  Glover  v.  Austin,  6 
Pick.  209;  Sumner  v.  Hamlet,  12  Pick.  76;  Merritt  v.  Johnson,  7 
Johns,  473;  2  Kent's  Com.  361. 

The  distinctions  and  qualifications,  that  may  be  appropriate  and 
necessary  in  the  application  of  this  doctrine  to  a  variety  of  cases 
that  may  arise,  do  not  require  consideration  in  determining  this  case. 
The  first  instruction  stated  was  favorable  to  the  defendant,  and 
forms  no  ground  of  exceptions  for  him;  and  the  plaintiff  does  not 
complain  of  it.  The  second  instruction,  that  "if  the  plaintiff  had 
only  incorporated  into  this  chain  some  small  portion  of  the  defend- 
ant's chain,  without  his  consent,  not  exceeding  two  or  three  links, 
the  chain  would  not  by  the  incorporation  of  such  small  portion  be- 
come the  property  of  the  defendant,"  is  understood  to  be  in  accord- 
ance w4th  the  rule  of  law  before  mentioned,  and  is  not  erroneous. 
Exceptions  overruled,  judgment  on  the  verdict. 


RICKETTS  V.  DORREL. 

55  Ind.  470.     1876. 

Replevin.  The  plaintiff  claimed  that  the  defendant  had  taken 
certain  rails  and  staves  of  wood  belonging  to  him.  The  defendant 
had  used  them  to  build  a  fence. 

Biddle,  J.  The  special  findings  in  this  case  plainly  show  that 
the  rails  and  stakes  replevied,  at  the  time  the  suit  was  commenced, 
and  when  they  were  taken  by  virtue  of  the  writ,  constituted  a  part 
of  a  standing  fence,  and  were,  therefore,  a  part  of  the  realty.  We 
are  of  the  opinion  that  they  were  not  "personal  goods,"  in  the  true 
meaning  of  the  statute  authorizing  replevin  (2  R.  S.  1876,  p.  628, 
sec.  71),  and,  therefore,  not  subject  to  be  replevied,  even  admitting 
that  they  were  wrongfully  taken  and  wrongfully  detained,  and 
wrongfully  put  in  the  fence,  by  the  appellant.  If  a  person  wrongfully 
took  and  detained  shingles,  and  nailed  them  upon  his  roof,  or  wrong- 
fully took  and  detained  brick,  and  laid  them  in  a  wall,  it  would  be 
a  mischievous  and  unsafe  rule  to  allow  the  o^\^ler  to  replevy  them, 
even  though  his  rights  were  greatlj^  outraged.  There  are  other 
remedies  to  redress  a  wrong  of  this  kind;  and  in  laying  down  the 
present  rule  as  law,  we  deny  the  party  no  right,  but  simply  refuse 
him  a  remedy  by  replevin.  In  the  present  case,  if  the  appellee  has 
suffered  a  wrong,  we  think  he  has  mistaken  his  remedy  to  redress  it. 


NOTE. 

The  questions  presented  by  the  cases  given  above  will  suggest 
many  questions  to  the  mind  of  the  student  which  are,  however, 
questions  as  to  the  measure  of  damages,  and  not  questions  as  to 
methods  by  which  title  to  chattels  is  acquired. 

1.  B,  in  good  faith,  improves  A's  chattel,  and  A  elects  to  seek 
money  and  not  the  chattel.  By  the  weight  of  authority,  A  recovers 
only  the  value  of  the  chattel  in  its  unimproved  condition.  See  Wey- 
mouth  V.  Chicago  Ry.  Co.,  17  Wis.  550. 

2.  B,  in  good  faith,  improves  A's  chattel,  and  A  replevies.  As- 
sume that  B  is  allowed  by  statute  to  retain  or  resume  possession  of 
the  chattel  on  giving  a  bond  to  produce  the  chattel  or  pay  its  value 
if  judgment  is  given  against  him.  B  gives  such  bond,  and  judgment 
is  given  against  him.  Most  courts  will  not  give  A  the  full  value  of 
the  improved  chattel,  but  will  give  him  either  the  value  of  the  un- 
improved chattel,  or  the  value  of  the  improved  chattel,  less  a  just 
allowance  for  the  value  of  B's  improvement.  See  Eaton  v.  Langley, 
65  Ark.  448. 

3.  B,  conscious  that  the  chattel  belongs  to  A,  improves  it.  A 
elects  to  seek  money  and  not  the  chattel.  It  is  difficult  to  see  why 
he  should  recover  more  than  the  value  of  the  chattel  in  its  unim- 
proved condition.  See  the  reasoning  in  Single  v.  Schneider,  30  Wis. 
570,  and  Moody  v.  Whitney,  38  Me.  174.  But  there  are  numerous 
statements  to  the  contrary.  See  Silsbury  v.  McCoon,  3  N.Y.  379, 
384. 

4.  B,  conscious  that  the  chattel  belongs  to  A,  improves  it,  and  A 
replevies.  B  gives  the  bond  mentioned  in  case  2,  supra.  By  the 
weight  of  authority,  A  recovers  the  value  of  the  chattel  in  its  im- 
proved condition.   See  Heard  v.  James,  49  Miss.  236. 

5.  B,  in  good  faith,  improves  A's  chattel,  and  assumes  to  sell  it 
to  C,  who  in  good  faith  assumes  to  buy  it.  A  may  by  the  weight  of 
authority  recover  from  C  only  as  much  as  he  could  have  recovered 
from  B.  See  Hoyt  v.  Duluth  R.R.  Co.,  103  Minn.  396.  See  contra, 
Wing  V.  Milliken,  91  Me.  387. 

6.  B,  conscious  that  the  chattel  belongs  to  A,  improves  it  and 
assumes  to  sell  it  to  C,  who  in  good  faith  assumes  to  buy  it.  A  may 
by  the  weight  of  authority  recover  from  C  the  value  of  the  article 
at  the  time  C  took  possession  of  it.  See  Wooden  Ware  Co.  v.  U.S., 
106  U.S.  432.  See  contra,  Railway  Co.  v.  Hutchins,  32  Ohio,  571. 


CHAP,  v.]  PICKERING    V.    MOORE.  169 


CHAPTER  V. 
TORTIOUS  CONFUSION. 


PICKERING  V.  MOORE. 

67  N.H.  533.     1893. 

Trover,  for  manure.  Facts  found  by  the  court.  March  31,  1883, 
the  defendant  leased  his  farm  for  the  term  of  three  years  to  the  plain- 
tiff, who  covenanted  to  carry  on  the  place  in  a  "husbandlike  man- 
ner," and  to  consume  and  convert  into  manure,  to  be  used  or  left 
upon  the  premises,  all  hay  and  fodder  raised  thereon.  The  plaintiff 
occupied  the  farm  and  performed  all  his  covenants  contained  in  the 
lease,  without  any  new  or  further  contract,  imtil  May  30,  1892. 
During  the  last  year  of  his  occupancy  he  fed  out  upon  the  farm  a 
large  quantity  of  fodder  not  produced  on  the  place.  He  put  twenty- 
five  cords  of  the  manure  made  from  this  fodder,  and  manure  of  the 
same  quality  and  value  made  from  fodder  raised  on  the  place,  to- 
gether, in  a  heap,  where  they  were  so  intermixed  that  thej'  could  not 
be  disting-uished.  The  defendant  prevented  him  from  taking  away 
the  twenty-five  cords. 

Carpenter,  J.  The  plaintiff  held  the  farm  after  the  expiration  of 
three  years,  as  tenant  from  year  to  year,  upon  the  terms  expressed 
in  the  lease.  Rmsell  v.  Fabyan,  34  N.H.  218,  223;  Conway  v.  Stark- 
weather, 1  Denio,  113.  Manure  made  upon  a  farm  by  the  consump- 
tion of  its  products  in  the  ordinary'  course  of  husbandry  is  a  part  of 
the  realty.  It  cannot  be  sold  or  carried  away  by  a  tenant  without 
the  landlord's  consent.  Sawyer  v.  Twiss,  26  N.H.  345,  349;  Perry 
V.  Carr,  44  N.H.  118,  120;  Hill  v.  De  Rochemont,  48  N.H.  87,  88. 
The  doctrine  "was  established  for  the  benefit  of  agriculture.  It 
found  its  origin  in  the  fact  that  it  is  essential  to  the  successful  culti- 
vation of  a  farm  that  the  manure  produced  from  the  droppings  of 
cattle  and  swine  fed  upon  the  products  of  the  farm,  and  composted 
with  earth  and  vegetable  matter  taken  from  the  land,  should  be 
used  to  supply  the  drain  made  upon  the  soil  in  the  production  of 
crops,  which  otherwise  would  become  impoverished  and  barren; 
and  in  the  fact  that  the  manure  so  produced  is  generally  regarded 
by  farmers  in  this  country  as  a  part  of  the  realty,  and  has  been  so 
treated  by  landlorfls  and  tenants  from  time  immemorial."  Haslem 
V.  Lockwood,  37  Conn.  500,  505. 


170  PICKERING    V.    MOORE.  [CHAP.  V. 

Whether  a  tenant,  '"where  there  is  no  positive  agreement  dis- 
pensing with  the  engagement  to  cultivate  his  farm  in  a  husbancUike 
manner,  is  bound  to  spend  the  hay  and  other  lilce  produce  upon  it 
as  the  means  of  preserving  and  continuing  its  capacity"  {Perry  v. 
Carr  and  Hill  v.  De  Rochemont,  supra),  in  other  words,  whether  the 
express  or  imphed  obUgation  to  cultivate  the  farm  in  "a  husbandlike 
manner"  binds  him  as  matter  of  law  to  convert  into  manure  all  the 
fodder  grown  on  the  premises,  is  a  different  and  possibly  an  open 
question.  Wing  v.  Gray,  36  Vt.  261,  266,  267;  Lewis  v.  Lyman,  22 
Pick.  437,  444,  445;  Middlehrook  v.  Corwin,  15  Wend.  169,  and  cases 
cited.  Brown  v.  Crump,  1  Marsh.  C.  P.  567;  Legh  v.  Hewitt,  4  East, 
154,  159;  Moulton  v.  Robinson,  27  N.H.  550,  561;  Cool.  Torts,  334, 
343,  344.  However  that  may  be,  no  rule  of  good  husbandry  requires 
a  tenant  to  buy  hay  or  other  fodder  for  consumption  on  the  farm. 
If,  in  addition  to  the  stock  maintainable  from  its  products,  he  keeps 
cattle  for  hire  and  feeds  them  upon  fodder  procured  by  purchase  or 
raised  by  him  on  other  lands,  the  landlord  has  no  more  legal  or  equit- 
able interest  in  the  manure  so  produced  than  he  has  in  the  fodder 
before  it  is  consumed.  It  is  not  made  in  the  ordinary  course  of  hus- 
bandry. It  is  produced  "in  a  manner  substantially  like  making  it  in 
a  livery  stable."  Hill  v.  De  Rochemont,  48  N.H.  87,  90;  Corey  v. 
Bishop,  48  N.H.  146,  148.  It  is  immaterial  whether  the  additional 
stock  is  kept  for  hire,  or  is  the  tenant's  property.  Needham  v.  Alli- 
son, 24  N.H.  355. 

The  plaintiff  did  not  lose  his  property  in  the  manm-e  by  inter- 
mixing it  with  the  defendant's  manure  of  the  same  quality  and  value 
without  his  consent.  It  is  not  claimed  that  the  plaintiff  mixed  the 
manure  with  any  fraudulent  or  wTongful  intent.  "The  intentional 
and  innocent  intermixture  of  property  of  substantially  the  same 
quality  and  value  does  not  change  the  o\vaiership.  And  no  one  has 
a  right  to  take  the  whole,  but  in  so  doing  commits  a  trespass  on 
the  other  owner.  He  should  notify  him  to  make  a  division,  or  take 
his  own  proportion  at  his  peril,  taldng  care  to  leave  to  the  other 
owner  as  much  as  belonged  to  him."  Ryder  v.  Hathaway,  21  Pick. 
298,  306;  Oilman  v.  Hill,  36  N.H.  311,  323;  Robinson  v.  Holt,  39 
N.H.  557,  563;  Moore  v.  Bowman,  47  N.H.  494,  501,  502;  Cheshire 
Railroad  v.  Foster,  51  N.H.  490,  493.  "Even  if  the  commingling 
were  malicious  or  fraudulent,  a  rule  of  law  which  would  take  from 
the  WTongdoer  the  whole,  when  to  restore  to  the  other  his  propor- 
tion would  do  him  full  justice,  would  be  a  rule  not  in  harmonj-  with 
the  general  rules  of  civil  remedy,  not  only  because  it  would  award 
to  one  party  a  redress  beyond  his  loss,  but  because  it  would  compel 
the  other  party  to  pay  not  damages,  but  a  penalty."  Cool.  Torts, 
53,  54. 

Whether  the  parties  were  tenants  in  common  of  the  manure  is  a 
question  that  need  not  be  determined.   Gardner  v.  Dutch,  9  Mass. 


CHAP,  v.]  PICKERING    V.    MOORE.  171 

427,  430,  431;  Ryder  v.  Hathaway,  21  Pick.  298,  305;  Chapman  v. 
Shepard,  39  Conn.  413,  425;  Kimherly  v.  Paichin,  19  N.Y.  330,  341. 
Assuming  that  thej^  were,  the  action  may  be  maintained.  A  tenant 
in  common  has  the  same  right  to  the  use  and  enjojTnent  of  the  com- 
mon property  that  he  has  to  his  sole  property,  except  in  so  far  as  it 
is  hmited  by  the  equal  right  of  his  co-tenants.  Where  two  have  each- 
an  equal  title  to  an  indivisible  chattel,  "as  of  a  horse,  an  oxe  or  a 
cowe,"  neither,  without  actual  and  exclusive  possession  of  the  chattel, 
can  enjoy  his  moiety.  Simultaneous  enjojonent  by  each  of  his  equal 
right  is  impossible.  Hence,  neither  can  lawfully  take  it  from  the 
possession  of  the  other.  The  one  excluded  from  possession  has  no 
legal  remedy  except  to  take  it  "when  he  can  see  his  tune."  Lit.,  s. 
323;  Southworth  v.  Smith,  27  Conn.  355,  359. 

A  tenant  in  common  of  personal  as  well  as  real  property  has  a 
right  to  partition  if  partition  is  possible,  and  if  not,  to  a  regulation 
of  its  use  equivalent  to  partition  or  to  a  sale.  Co.  Lit.  164  b,  165  a; 
Stoughton  v.  Leigh,  1  Taunt.  402,  411,  412;  Morrill  v.  Morrill,  5  N.H. 
134,  135;  Crowell  v.  Woodbury,  52  N.H.  613.  On  partition  he  is 
entitled  to  no  particular  part  of  the  property,  but  only  to  his  due 
proportion  in  value  and  quality  of  the  whole.  When  it  consists  of 
chattels  differing  in  quality  and  value,  an  appraisal  of  the  value  and 
a  consideration  of  the  qualities  of  the  several  chattels  are  essential 
to  an  assignment  to  each  of  his  just  share.  In  this  case,  as  in  that 
of  a  single  indivisible  chattel,  if  the  parties  cannot  agree  upon  the 
use,  sale,  or  division,  judicial  intervention  is'  necessaiy.  Until  an 
adjudication  of  their  rights,  neither  can  assert  a  title  in  severalty  to 
any  portion  of  the  property.  When  the  common  property  is  divisi- 
ble by  weight,  measm-e,  or  number  into  portions  identical  in  quality 
and  value,  as  com  and  various  other  articles,  a  different  case  is  pre- 
sented. There  is  no  question  of  legal  or  equitable  right.  There  is 
and  can  be  no  dispute  that  a  com't  of  law  or  equity  can  settle.  Count- 
ing, weighing,  and  measuring  are  not  judicial,  but  ministerial  func- 
tions. Equity  could  do  no  more  than  decree  that  each  might  take 
so  many  pounds,  bushels,  or  yards,  or  so  many  of  the  articles  in 
number,  and  enforce  its  decree  by  process,  in  other  words,  enforce 
the  conceded  right.  One  may  in  general  do  without  a  decree  what 
equity  would  decree  that  he  might  do.  Neither  law  nor  equity  al- 
lows one  in  the  exercise  of  his  own  rights  to  do  an  unnecessary  and 
avoidable  injury  to  another.  One  is  entitled  to  the  possession  of  the 
whole  in  those  cases  only  where  it  is  necessaiy  to  his  enjojanent  of 
his  moiety.  Here  it  is  not  necessary.  There  is  no  more  difficulty  in 
separating  one  portion  from  another,  than  there  is  in  selecting  A's 
marked  sheep  from  B's  flock.  Either  may  make  the  division.  The 
law  is  not  so  unreasonable  as  to  compel  a  resort  to  the  courts  in  order 
to  ol)tain  a  partition  which  either  may  make  without  expense  and 
without  danger  of  injustice  to  his  co-tenant.   Excej^t  in  Daniels  v 


172  PICKERING    V.    MOORE.  [CHAP.  V. 

Brown,  34  N.H.  454,  it  has  never  been  held,  so  far  as  observed,  that 
a  tenant  in  common  is  liable  to  his  co-tenant  in  any  form  of  pro- 
ceeding for  taking  from  the  latter's  possession  and  consmning  or 
destroying  his  just  proportion  only  of  the  common  property.  The 
conveyance  by  a  tenant  in  common  of  a  part  of  the  common  land 
by  metes  and  bounds  may  effect  a  partition,  and  will  if  it  does  no 
injustice  to  his  co-tenants,  —  if  their  just  share  can  be  assigned  to 
them  out  of  the  remaining  land.  Holbrook  v.  Bowman,  62  N.H.  313, 
321.  No  reason  is  perceived  why  a  similar  doctrine  should  not  be 
applied  in  the  case  of  a  common  tenancy  of  chattels.  If  A  and  B  own 
in  common  100  horses,  and  B  sells  10  of  them  to  C,  why  should  A  be 
permitted  to  take  them  "when  he  can  see  his  time,"  if  he  has  pos- 
session of  and  can  have  his  full  share  assigned  to  him  from  the  re- 
maining 90?  However  that  may  be,  a  tenant  in  common  of  goods 
divisible  by  tale  or  measure  may,  without  the  consent  and  against 
the  will  of  his  co-tenant,  rightfully  take  and  appropriate  to  his  sole 
use,  sell  or  destroy  so  much  of  them  as  he  pleases,  not  exceeding  his 
share,  and  by  so  doing  effect  pro  tanto  a  valid  partition.  To  this 
extent  Daniels  v.  Brown,  supra,  is  overruled.  Haley  v.  Colcord,  59 
N.H.  7,  8;  Gage  v.  Gage,  66  N.H.  282,  288;  Seldon  v.  Hickock,  2  Cai. 
166;  Lobdell  v.  Stowell,  51  N.Y.  70,  and  cases  cited;  Stall  v.  Wilbur, 
77  N.Y.  158,  164;  Cool.  Torts,  455;  6  Am.  Law  Rev.  455^59,  and 
cases  cited.  The  defendant,  by  preventing  the  plaintiff  from  taking 
his  part  of  the  manure,  exercised  a  dominion  over  it  inconsistent 
with  the  plaintiff's  rights.  Evans  v.  Mason,  64  N.H.  98. 

Judgment  for  the  plaintiff. 
Wallace,  J.,  did  not  sit:  the  others  concurred. 

Note.  —  In  Ryder  v.  Hathaway,  21  Pick.  (Mass.)  298,  the  court 
said  (p.  305):  "There  may  be  an  intentional  intermingling,  and  yet 
no  wrong  intended.  ...  In  such  cases,  which  may  be  deemed  acci- 
dental intermixtures,  it  would  be  unreasonable  and  unjust,  that  he 
should  lose  his  own,  or  be  obliged  to  take  his  neighbor's.  If  they 
were  of  equal  value,  as  com,  or  wood,  of  the  same  kind,  the  rule  of 
justice  would  be  obvious.  Let  each  one  take  his  own  given  quantity. 
But  if  they  were  of  unequal  value  the  rule  would  be  more  difficult. 
And  if  the  intennixture  was  such  as  to  destroy  the  property,  the 
whole  loss  should  fall  on  him  whose  carelessness  or  folly  or  misfor- 
tune caused  the  destruction  of  the  whole."  See  also  Pratt  v.  Bryant, 
20  Vt.  333,  337. 

In  Ayre  v.  Hixson,  53  Or.  19,  the  court  said  (p.  32) :  "It  is  a  ques- 
tion of  confusion  of  goods.  The  remedies  of  the  parties  owning  por- 
tions of  the  property  so  commingled  depend  upon  the  circumstances 
of  the  commingling;  namely,  whether  by  consent  of  the  owners,  by 
mistake  or  accident,  or  whether  it  was  the  result  of  wilful,  careless, 
or  fraudulent  conduct.  In  the  first  two  cases,  as  between  the  owTiers, 


CHAP,  v.]  GREAT  SOUTHERN  GAS  CO.  V.  LOGAN  NATURAL  GAS  CO.  173 

neither  of  them  will  lose  his  property,  but  each  will  be  treated  as  a 
tenant  in  common  in  proportion  to  his  interest." 

There  is,  it  is  submitted,  no  clear  authority  as  to  the  rule  of  law 
where  the  mixture  of  units  of  unequal  value  was  made  in  good  faith. 
The  result  of  the  mixture  is  a  mass  not  practically  severable.  This 
situation  is  not  dissimilar  to  the  situation  showTi  by  the  facts  of 
Puldfer  V.  Page  in  the  preceding  chapter. 


GREAT   SOUTHERN  GAS   CO.   v.   LOGAN   NATURAL 

GAS  CO. 

155  Fed.  114.     1907. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  Ohio. 
Before  Lurton,  Severens,  and  Richards,  Circuit  Judges. 

Per  Curiam.  This  case  was  here  upon  the  questions  arising 
over  conflicting  leases  of  the  oil  and  gas  rights  in  the  same  land.  The 
facts  are  fully  stated  in  our  former  opinion.  126  Fed.  62.3,  61  C.  C. 
A.  359.  Shortly  after  the  litigation  began  defendants  struck  gas,  and 
they  continued  to  take  and  market  the  gas  until  the  well  was  ex- 
hausted. The  court  below  referred  the  case  to  a  special  master  for  an 
accounting  as  to  the  value  of  the  gas.  It  appeared  that  the  gas  from 
the  well  was  conducted  to  a  pipe  line,  together  with  the  gas  from 
some  60  wells  OAvned  by  the  defendant,  and  that  no  serious  effort  was 
made  to  measure  the  contribution  of  this  well  to  the  pipe  line.  Upon 
the  theory  of  confusion  of  goods  by  a  trespasser,  the  master  charged 
the  defendant  with  the  gross  receipts  for  the  entire  product  of  its 
60  wells  aggregating  over  $1,000,000.  Upon  exceptions  this  report 
was  set  aside,  and  the  value  of  the  gas  fixed  by  the  Circuit  Judge  at 
$10,000,  that  being  the  estimated  market  value  of  a  gas  well  of  the 
approximate  productiveness  of  this  well  in  the  Sugar  Grove  field. 
The  plaintiff  assigned  error  to  this  decree.  That  the  defendant  was 
a  trespasser  ab  initio  must  be  now  conceded.  That  it  continued  to 
use  this  gas  during  the  litigation  which  denied  its  title,  and  that  it 
did  this  taking  no  care  to  determine  the  amount  of  the  gas  or  its 
value  thus  wrongfully  taken,  must  be  also  conceded.  Conceding 
that  it  was  a  good  faith  claimant  and  that  the  litigation  was  not 
flimsy,  but  bona  fide,  it  nevertheless  remains  that  it  must  fully  com- 
pensate the  plaintiff.  Poioers  v.  U.S.,  119  Fed.  562,  56  C.  C.  A.  128; 
Jegon  v.  Vivian,  L.  R.  6  Ch.  App.  742,  761;  Whitney  v.  Huntington, 
37  Minn.  197,  33  N.  W.  561;  Ross  v.  Scott,  15  Lea  (Tenn.),  479. 
Having  taken  no  step  by  which  it  can  account  for  the  property  of 
plaintiff,  it  must  submit  to  every  inconvenience  in  ascertaining  that 


174  STEPHENSON    V.    LITTLE.  [CHAP.  V. 

compensation  and  all  reasonable  doubts  which  arise  in  that  account- 
ing. Wetherbee  v.  Green,  22  Mich.  311,  7  Am.  Rep.  653.  The  rea- 
sonable market  value  of  a  gas  well  does  not,  under  the  peculiar  cir- 
cumstances, compensate  plaintiff.  That  would  be  to  give  it  only  the 
value  of  the  gas  in  the  ground.  That  might  be  adequate  but  for  the 
fact  that  plaintiff  had  its  o^vn  pipe  line,  and  could  therefore  market 
gas  from  this  well  with  little  addition  to  the  cost  of  conducting  its 
business. 

This  well  is  also  shown  to  have  been  a  larger  producer  than  the 
average  well  in  this  field.  It  also  appears  that  all  of  the  wells  con- 
tributing to  defendants'  pipe  line  did  not  contribute  dm'ing  the 
entire  life  of  this  well,  and,  further,  that  the  appellant  was  obliged 
to  buy  gas  of  appellee  to  meet  its  own  requirements.  In  view  of  all 
of  the  facts,  we  conclude  that  an  aliquot  part  of  the  gross  product  of 
60  wells  wdll  not  be  an  unjust  compensation.  Cooley  on  Torts,  53; 
Sutherland  on  Damages,  §  101;  Moore  v.  Bowmen,  47  N.H.  494, 
500.  The  gross  product  was  marketed  for  $1,003,813.  One  sixtieth 
part  of  this  is  $16,730.21.  The  decree  will  be  therefore  modified  so 
as  to  fix  the  damages  at  that  sum,  with  interest  from  the  date  of  our 
former  decree  aflSrming  the  decree  of  the  Circuit  Court,  and  costs. 

Note.  —  In  determining  how  much  of  the  mass  was  contributed 
by  the  wrongdoer,  all  difficulties  of  proof  are  to  be  met  by  him  and 
all  reasonable  doubts  resolved  against  him.  This  is  so  where  the 
wrongdoer  acted  in  good  faith,  and,  a  fortiori,  where  he  acted  in  bad 
faith.  See  First  National  Bank  v.  Henry,  159  Ala.  367,  376;  Mvgge 
V.  Jackson,  53  Fla.  323,  326;  Maloney  v.  King,  30  Mont.  158,  168; 
Lance  v.  Butler,  135  N.C.  419. 


STEPHENSON   v.   LITTLE. 

10  Mich.  433.     1862. 

The  plaintiff  cut  timber  from  government  land,  and  mixed  it  TX'ith 
timber  of  the  same  character  cut  from  his  o^\ti  land.  He  did  not  act 
in  good  faith.  The  defendants,  acting  for  the  govermnent,  seized  the 
whole  mass,  and  exercised  certain  acts  of  dominion  over  it,  and  the 
plaintiff  brought  trover  against  them. 

Manning,  J.  The  party  guilty  of  a  fraudulent  confusion  of  goods 
loses  all  interest  therein,  on  the  principle,  I  take  it,  that  by  the  ad- 
mixture he  is  unable  any  longer  to  identify  his  own,  and  is  therefore 
remediless,  unless  on  the  equitable  principle  of  giving  him  a  part  of 
the  common  mass  equal  to  what  he  originally  possessed,  w^here  the 
goods  are  of  equal  value,  and  it  can  be  done  without  injury  to  the 
other  party,  and  fraud  does  not  intervene  to  prevent  its  application. 


CHAP,  v.]  STEPHENSON    V.    LITTLE.  175 

Whether  correct  or  not  in  what  I  suppose  to  be  the  reason  of  the  rule, 
the  rule  itself  is  too  clearly  established  to  be  called  in  question.  — 
Ryder  v.  Hathaway,  21  Pick.  298;  Willard  v.  Rice,  11  Mete.  493; 
Hesseltine  v.  Stockwell,  30  Me.  237;  Bryant  v.  Ware,  30  Me.  295. 

The  logs  taken  from  the  government  land  were  so  mixed  with 
those  taken  from  the  plaintiff's  owti  land,  that  one  could  not  be  dis- 
tinguished from  the  other;  and  from  the  evidence  in  the  case,  I  think 
this  was  done  designedly,  and  with  a  view  of  defrauding  the  Govern- 
ment. 

The  application  to  exchange  the  south  fractional  half  of  the  north- 
west quarter  of  section  thirty,  for  lot  three  of  the  same  section,  after 
the  plaintiff  had  stripped  it  of  the  timber,  without  disclosing  that  fact 
in  his  petition,  and  the  taking  of  the  timber  from  lot  three  before  he 
was  notified  that  the  Commissioner  of  the  General  Land  Office  had 
given  his  consent  to  the  change,  was  an  attempt  to  defraud  the  Gov- 
ernment, which  it  was  the  duty  of  the  Receiver  of  the  Land  Office,  on 
discovering  the  facts,  to  prevent,  as  he  did.  To  my  mind,  the  evi- 
dence shows  a  clear  case  of  fraudulent  intermixture,  by  which  the 
plaintiff  has  lost  all  right  to  the  logs  taken  from  his  own  land  and 
intermixed  by  him  vnth  the  far  greater  number  of  logs  taken  from 
lot  three,  and  other  lands  belonging  to  the  Government. 

I  think  the  judgment  should  be  affirmed,  with  costs. 

Cheistiancy,  J.,  concurred  in  this  opinion. 

Campbell,  J.  Where  two  kinds  of  articles  are  so  mixed  that  they 
form  a  mass  not  like  either,  but  differing  in  value  or  kind,  the  party 
not  in  fault,  because  he  can  not  get  back  either  his  own  property  or 
that  which  vnll  to  all  intents  and  purposes  replace  it,  may,  as  has 
been  held,  retain  the  whole  —  although  by  the  civil  law  there  may  be 
some  doubt  whether  he  was  not  obliged  to  account  for  the  surplus 
value.  But  where  a  mass  of  articles  of  a  certain  kind  and  value,  as 
grain  or  the  like,  is  mixed  with  another  mass  of  the  same  kind  and 
value,  there  is  neither  reason  nor  justice  in  holding  that  any  such 
forfeiture  arises.  A  person  is  not  damnified  by  mixing  his  property 
in  a  mass  from  which  he  can  withdraw  what  will  be  substantially  and 
to  all  intents  and  purposes  identical  with  it.  I  do  not  think  the 
decisions,  when  carefully  weighed,  maintain  any  such  doctrine  as 
would  create  a  forfeiture  in  such  a  case.  Where  a  man  can  obtain 
all  that  he  is  entitled  to  in  order  to  put  him  in  full  enjo^anent  of  his 
own,  the  law  will  not  bestow  on  him  the  property  of  another. 

That  logs  are  to  be  governed  by  similar  rules  there  can  be  no  rea- 
son to  doubt.  We  not  only  know  as  a  matter  of  common  inforaia- 
tion,  but  the  evidence  before  us  shows  that  logs  situated  as  these 
were  had  a  uniform  value  per  thousand  feet,  taking  them  as  they  ran, 
and  that  one  parcel  was  as  good  as  another  parcel.  There  may  be 
differences  between  select  and  poor  logs,  but  Avhere  it  exists  there  is 
no  great  danger  of  such  an  intermixture  as  will  prevent  a  party  from 


176  THE    IDAHO.  [chap.  V. 

reclaiming  his  own  or  its  equivalent.  In  the  case  before  us  the  testi- 
mony of  value  shows  that  no  difference  existed. 

There  was  no  reason  therefore  why  the  defendants  should  have 
seized  more  than  what  belonged  to  Government,  the  amount  of 
which  they  had  ascertained.  They  did  not  seize  the  logs  for  the  pur- 
pose of  selecting  that  amount.  They  seized  the  whole,  claiming  them 
as  public  property,  and  at  once  advertised  them  for  sale,  thus  nega- 
tiving any  idea  of  holding  them  for  the  other  purpose.  Such  a  seiz- 
ure amounts  to  a  conversion,  and  I  think  they  should  have  been  held 
liable  accordingly. 

Note.  —  In  support  of  the  opinion  of  Manning,  J.,  see  Ryder  v. 
Hathaway,  21  Pick.  (Mass.)  298,  305;  Stone  v.  Marshall  Oil  Co., 
208  Pa.  85;  Ward  v.  Ayre,  Cro.  Jac.  366;  Spence  v.  Union  Marine 
hisurance  Co.,  L.  R.  3  C.  P.  427,  437. 

In  support  of  the  opinion  of  Campbell,  J.,  see  Hesseltine  v.  Stock- 
well,  30  Me.  237,  242;  Robinson  v.  Holt,  39  N.H.  557,  563;  St.  Paul 
Boom  Co.  V.  Kemp,  125  Wis.  138;  Lupton  v.  White,  15  Ves.  432,  442. 


THE    IDAHO. 

93  U.S.  575.     1876. 


Me.  Justice  Strong  delivered  the  opinion  of  the  court. 

Now,  what  must  be  the  legal  effect  of  all  this?  What  the  effect  of 
intermingling  the  twentj'-five  bales  -uith  the  one  hundred  and  forty 
that  belonged  to  Porter,  in  such  a  manner  that  they  could  not  be 
distinguished,  and  so  completely  that  it  is  impossible  for  either  party 
to  identify  any  one  of  the  one  hundred  and  sixtj-'-five  bales  as  a  part 
of  the  lot  of  twenty-five,  or  of  the  larger  lot  of  one  hundred  and  forty, 
shipped  on  the  "Colson"?  We  can  come  to  no  other  conclusion  than 
this:  the  right  of  possession  of  the  whole  was  in  Porter,  and  neither 
he  who  caused  the  confusion,  nor  any  one  claiming  under  him,  is 
entitled  to  any  bale  which  he  cannot  identify  as  one  of  the  lot  of 
twenty-five.  It  is  admitted,  the  general  rule  that  governs  cases  of 
intermixture  of  property  has  many  exceptions.  It  applies  in  no  case 
where  the  goods  intermingled  remain  capable  of  identification,  nor 
where  they  are  of  the  same  quality  or  value;  as  where  guineas  are 
mingled,  or  grain  of  the  same  quality.  Nor  does  the  rule  apply  where 
the  intermixture  is  accidental,  or  even  intentional,  if  it  be  not  lATong- 
ful.  But  all  the  authorities  agree,  that  if  a  man  wilfully  and  wrong- 
fully mixes  his  own  goods  with  those  of  another  owner,  so  as  to  render 
them  undistinguishable,  he  will  not  be  entitled  to  his  proportion, 
or  any  part,  of  the  property.  Certainly  not,  unless  the  goods  of  both 
owners  are  of  the  same  quality  and  value.   Such  intermbcture  is  a 


CHAP,  v.]  BRYANT    V.    WARE.  177 

fraud.  And  so,  if  the  wTong-doer  confounds  his  own  goods  with 
goods  which  he  suspects  maj^  belong  to  another,  and  does  this  with 
intent  to  mislead  or  deceive  that  other,  and  embarrass  him  in  obtain- 
ing his  right,  the  effect  must  be  the  same.  Thus  it  was  ruled  in  Ryder 
V.  Hathaivmj,  21  Pick.  306.  Such  is  the  present  case.  The  confusion 
of  the  bales  of  cotton  was  not  accidental.  It  was  purposely  made. 
The  intermixture  was  evidently  intended  to  render  any  identifica- 
tion of  particular  bales  impracticable,  and  to  cover  them  against  the 
search  of  a  suspected  OTsnier.  It  was,  therefore,  wrongful.  And  the 
bales  were  not  of  uniform  value.  They  differed  in  weight  and  in 
grade.  But  even  if  they  were  of  the  same  kind  and  value,  the  wronged 
party  would  have  a  right  to  the  possession  of  the  entire  aggregate, 
leaving  the  wrong-doer  to  reclaim  his  own,  if  he  can  identify  it,  or  to 
demand  his  proportional  part.  Stephenson  v.  Little,  10  Mich.  447. 
The  libellants  have  made  no  attempt  to  identify  any  part. 

Note.  —  If  the  mixture  of  units  of  unequal  value  is  made  in  bad 
faith  the  wrong-doer  forfeits  all  rights  in  the  units  belonging  to  him 
prior  to  the  mixture.  See  Jewett  v.  Dringer,  30  N.  J.  Eq.  291;  Weaver 
V.  Neal,  61  W.  Va.  57;  Jenkins  v.  Steanka,  19  Wis.  126. 


BRYANT   V.   WARE. 

30  Me.  295.     1849. 

Trespass  de  ho?iis  asportatis,  for  a  quantity  of  cedar  railroad 
sleepers,  juniper  knees,  shingles,  and  juniper  timber. 

At  the  trial,  before  Wells,  J.,  it  appeared,  that  the  lumber  was 
cut  in  the  winter  of  1840^1,  by  one  Samuel  Potter,  a  part  on  the 
land  of  defendant,  and  a  part  on  land  of  Timothy  Boutelle,  the  two 
tracts  being  contiguous  in  the  town  of  Alton.  The  timber  was  hauled 
by  Potter  into  a  brook,  for  the  purpose  of  being  floated  to  market, 
and  in  the  following  spring  it  was  run  down  to  the  Penobscot  River 
a])ove  the  town  of  Orono,  where  it  was  rafted  into  eleven  rafts,  six 
of  which  were  run  to  Bangor  immediately  afterwards,  and  delivered 
by  Potter  to  plaintiff,  to  be  held  by  him  to  pay  what  Potter  owed 
him,  and  the  balance  to  be  paid  to  Potter,  the  plaintiff  having  sup- 
plied Potter  while  cutting  the  lumber.  The  other  rafts  were  taken  by 
defendant  near  Oldtown  as  his  property,  and  soon  afterwards  he 
came  to  Bangor,  and  took  the  remaining  six  rafts  out  of  the  posses- 
sion of  plaintiff. 

Potter  was  a  trespasser  on  both  tracts,  and  there  were  no  marks 
upon  any  of  the  timber. 

With  other  rulings,  the  Court  instructed  the  jury,  that  if  a  part 
of  the  lumber  was  cut  on  Ware's  and  a  part  on  Boutelle's  land,  and 


178  BKYANT    V.    WAKE.  [cHAP.  V. 

was  all  mixed  together  in  such  a  manner,  by  those  who  cut  it,  that 
the  part  cut  on  Ware's  land  could  not  be  distinguished  from  what 
was  cut  on  Boutelle's  land,  then  Ware  had  a  right  to  take  the  whole, 
and  this  action  of  trespass  could  not  be  maintained;  also,  that  if  the 
rafts  taken  by  the  defendant  near  Oldtown,  contained  more  than  all 
the  timber  cut  from  his  land,  it  would  make  no  difference  where  he 
took  it  (he  intending  to  take  all  the  timber  cut  as  aforesaid),  if  they 
found  that  the  timber  was  intermingled,  and  could  not  be  distin- 
guished as  before  stated. 

The  jury  returned  a  verdict  for  defendant,  and  the  plaintiff  ex- 
cepted. 

Howard,  J.  This  was  an  action  of  trespass  de  bonis  asportatis, 
for  a  quantity  of  cedar  railroad  sleepers,  juniper  knees,  shingles  and 
juniper  timber.  There  was  evidence,  as  stated  in  the  exceptions, 
tending  to  show  that  the  lumber  was  cut  in  the  'wdnter  of  1840-41, 
by  Samuel  Potter,  a  trespasser,  on  two  contiguous  tracts  of  land, 
and  hauled  into  a  brook,  to  be  floated  down  to  a  market.  That  one 
of  the  tracts  of  land  was  owned  by  the  defendant,  and  that  the  other, 
called  the  college  land,  was  owned  by  Timothy  Boutelle.  That  in 
the  spring  following,  the  timber  was  run  down  to  the  Penobscot 
River  and  rafted  into  eleven  rafts,  six  of  which  were  run  to  Bangor, 
immediately  after  by  Potter,  and  "delivered  to  the  plaintiff  to  pay 
him  what  Potter  owed  him,  and  the  balance  to  be  paid  to  Potter 
(the  plaintiff  having  supplied  Potter  while  cutting  the  lumber)." 
"That  Potter  was  a  trespasser  on  both  lots,  on  which  he  cut  the 
timber";  and  that  "there  was  no  other  intermingling  of  the  timber 
cut  from  both  tracts,  except  that  the  logs  were  hauled  into  the  same 
brook,  at  the  same  landing,  and  afterguards  rafted  into  the  same  rafts, 
there  being  no  marks  on  any  of  the  timber." 

The  defendant  took  the  five  rafts  at  Oldtown,  as  his  property, 
and  soon  after  took  the  remaining  six  rafts  out  of  the  possession  of 
the  plaintiff,  at  Bangor. 

The  instructions  to  the  jury,  to  which  exceptions  were  taken  and 
urged  in  the  argument,  were :  — 

1.  That,  if  a  part  of  the  lumber  was  cut  on  the  defendant's  land, 
and  a  part  on  the  college  land,  and  the  whole  was  mixed  together  in 
such  a  manner,  by  those  who  cut  it,  that  it  could  not  be  distin- 
guished, the  defendant  had  a  right  to  take  the  whole,  and  that  this 
action  of  trespass  could  not  be  maintained. 

2.  That  if  the  defendant  did  take  the  five  rafts  at  Oldtown,  and 
if  they  amounted  to  more  than  all  of  the  timber  cut  from  his  land, 
it  would  make  no  difference  where  he  took  it,  if  he  intended  to  seize 
all  of  the  timber  cut  as  before  mentioned,  if  they  found  that  it  was 
intermingled,  and  could  not  be  distinguished  as  before  stated. 

If  one  take  the  goods  of  another,  as  a  trespasser,  he  does  not 
thereby  acquire  a  title  to  them,  and  cannot  invest  another  with 


CHAP,  v.]  BRYANT    V.    WARE.  '  179 

a  title;  but  the  original  owner  msiy  follow  his  property  and  reclaim 
it  from  the  trespasser,  or  any  other  person  claiming  through  him, 
so  long  as  the  identity  can  be  established. 

If  the  timber  taken  by  Potter,  as  a  trespasser,  from  the  land  of 
the  .defendant,  was  so  mingled  with  the  other  timber  taken  by  him 
from  the  college  land,  that  it  could  not  be  distinguished,  it  would 
produce  what  is  denominated  a  confusion  of  goods.  Loomis  v. 
Green,  7  Greenl.  393;  Wingate  v.  Smith,  20  Maine,  287;  Hazeltine 
V.  Stockwell,  30  Maine,  237;  Rijder  v.  Hailmway,  21  Pick.  298;  WU- 
lard  V.  Rice,  11  Mete.  493;  Beits  v.  Lee,  5  Johns.  348;  Curtis  v. 
Groat,  6  Johns.  168;  Bahcock  v.  Gill,  10  Johns.  287;  Brown  v.  Sax,  7 
Cowen,  95;  Treat  v.  Barber,  7  Conn.  280;  Barron  v.  Cobleigh,  11 
N.H.  558. 

Where  the  confusion  or  commixture  of  goods  is  made  by  consent 
of  the  owners,  or  by  accident,  and  without  fault,  so  that  they  can- 
not be  distinguished,  but  the  identity  remains,  each  is  entitled  to 
his  proportion. 

This  was  also  the  doctrine  of  the  civil  law.  (Just.  Inst.  Lib.  2, 
tit.  1,  §§  27,  28.) 

But  if  such  intermixture  be  wilfully  or  negligently  effected  by 
one,  without  the  knowledge  or  approbation  of  the  other  owner,  the 
latter  would  be  entitled  by  the  conmion  law  to  the  whole  property, 
without  making  satisfaction  to  the  former  for  his  loss.  The  civil 
law,  however,  required  the  satisfaction  to  be  made.  Browne's  CivU 
Law,  243;  Ward  v.  Ayre,  Cro.  Jac.  366;  2  Black.  Com.  405;  2  Kent, 
Cora.  363,  364,  where  the  civil  law  is  stated  differently  by  the 
learned  chancellor,  page  364;  Story's  Com.  on  Bailments,  §  40; 
Lupton  V.  White,  15  Vesey,  440;  Hart  v.  Ten  Eyck,  2  Johns.  Chan. 
62. 

If  the  defendant  found  his  timber,  which  had  been  wrongfully 
taken  from  his  land,  mingled  with  other  timber,  in  the  manner 
stated  in  the  evidence,  so  that  it  could  not  be  distinguished,  he  had 
clearly  a  right  to  take  possession  of  the  whole,  without  committing 
an  act  of  trespass,  even  if  he  may  be  held  to  account  to  the  true 
owner  for  a  portion  of  it.  He  had,  at  least,  a  common  interest  in  the 
property,  and  in  taking  possession  he  asserted  only  a  legal  right. 
Inst.  Lib.  2,  tit.  1,  §  28;  Story's  Com.  on  Bailments,  §  40. 

In  any  view  of  the  case,  upon  the  facts  presented,  the  instructions 
were  correct.  Exceptions  overruled. 


180  BRINSMEAD    V.    HARRISON.  [CHAP.  VI. 


CHAPTER  VI. 
SATISFACTION  OF  JUDGMENT. 


BRINSMEAD   v.   HARRISON. 

L.  R.  6  C.  P.  584.     1871. 

WiLLES,  J.  We  decided  yesterday  that,  according  to  the  law  laid 
down  by  Lord  Wensleydale  in  King  v.  Hoare,  13  M.  &  W.  494,  a 
judgment  in  an  action  against  one  of  two  joint  tort-feasors  is  a  bar 
to  an  action  against  the  other  for  the  same  cause.  There  remains, 
however,  an  entirely  different  question,  which  arises  upon  the  new 
assignment,  and  which  is,  whether  a  judgment  in  trover,  without 
satisfaction,  changes  the  property  in  the  goods  so  as  to  vest  the 
property  therein  in  the  defendant  from  the  time  of  the  judgment, 
or  of  the  conversion,  or  whether  such  recovery  operates  as  a  mere 
assessment  of  the  value,  on  payment  of  which  the  property  in  the 
goods  vests  in  the  defendant.  It  is  obvious  that  this  is  a  different 
question  from  that  which  we  have  alreadj^  disposed  of;  because,  if 
the  mere  recovery  vests  the  property  in  the  defendant,  the  property  is 
equally  changed  as  to  all  strangers.  It  is  a  question  which  affects 
the  transfer  of  property  generally. 

We  are  of  opinion  that  no  such  change  is  produced  by  the  mere 
recovery.  The  proceeding  in  such  an  action  is  not  a  proceeding  in 
rem :  it  is,  to  recover  prima  facie  the  value  of  the  goods.  It  may  be 
that  the  goods  have  been  returned,  and  the  judgment  given  for 
nominal  damages  only.  To  say  in  such  a  case  that  the  mere  obtain- 
ing judgment  vests  the  property  in  the  defendant  would  be  an 
absurdity.  It  is  clear,  therefore,  that  the  judgment  has  no  specific 
effect  upon  the  goods.  The  only  way  the  judgment  in  trover  can 
have  the  effect  of  vesting  the  property  in  the  defendant  is,  by  treat- 
ing the  judgment  as  being  (that  which  in  truth  it  ordinarily  is)  an 
assessment  of  the  value  of  the  goods,  and  treating  the  satisfaction 
of  the  damages  as  pajment  of  the  price  as  upon  a  sale  of  the  goods, 
according  to  the  maxim  in  Jenk.  4th  Cent.  Case  88.  Any  other  con- 
struction would  seem  to  be  absurd. 

This  question  whether  the  property  is  changed  by  the  mere  re- 
covery in  trover  appears  to  have  led  to  much  difference  of  opinion. 
The  authority  mainly  relied  upon  by  Mr.  Powell  was  the  dictum  of 
Jervis,  C.J.,  in  Buckland  v.  Johnson,  15  C.  B.  145,  157;  23  L.  J. 
(C.P.)  204,  in  which  that  very  learned  and  accurate  judge  did  lay  it 


CHAP.  VI.]  BRINSMEAD    V.    HARRISON.  181 

dowTi,  upon  the  authority  of  a  case  in  Strange,  Adams  v.  Broiighton^ 
2  Str,  1078,  that  the  property  is  changed  by  the  mere  recovery, 
without  any  satisfaction.  I  would  observe,  however,  that  the  case, 
as  reported  in  Strange,  is  far  from  satisfactory.  It  is  also  reported 
in  Andrews,  p.  18,  where  the  case  is  thus  stated:  —  "An  action  of 
trover  was  brought  by  the  present  plaintiff  against  one  Mason, 
wherein  he  obtained  judgment  by  default,  and  afterwards  had  final 
judgment;  whereupon  a  writ  of  error  was  brought.  And  another 
action  was  now  brought  against  Broughton  by  the  same  plaintiff, 
and  for  the  same  goods  for  which  the  first  action  was  brought."  An 
appHcation  appears  to  have  been  made  to  hold  the  defendant  in  the 
second  action  to  special  bail;  and  there  was  sufficient  reason  why 
special  bail  should  not  be  allowed,  .because  the  judgment  against 
Mason  had  the  effect  of  preventing  a  second  action  being  maintained 
against  Broughton.  The  loose  expressions  of  the  court,  —  that 
"the  property -of  the  goods  is  entirely  altered  by  the  judgTaent  ob- 
tained against  Mason,  and  the  damages  recovered  in  the  first  action 
are  the  price  thereof;  so  that  he  hath  now  the  same  property  therein 
as  the  original  plaintiff  had;  and  this  against  all  the  world,"  —  were 
quite  unnecessary.  The  same  may  be  said  as  to  the  dictum  of 
Jervis,  C.J.,  in  Buddand  v.  Johnson,  15  C.  B.  145;  23  L.  J.  (C.P.) 
204.  That  was  an  action  against  a  person  who  jointly  with  his  son 
had  sold  goods  the  proceeds  of  which  the  defendant  had  received. 
After  the  sale,  the  plaintiff  (who  claimed  the  goods),  in  ignorance 
that  the  father  had  received  the  money,  brought  an  action  against 
the  son  for  money  had  and  received  and  for  damages  for  the  conver- 
sion, and  recovered  a  verdict  for  lOOl.  against  him;  but,  not  suc- 
ceeding in  obtaining  satisfaction,  in  consequence  of  the  son's  insol- 
vency, he  brought  a  second  action  against  the  father  for  the  same 
causes.  It  is  clear  that  the  proceedings  in  the  first  action  amounted 
to  an  election  to  treat  the  matter  as  a  wrong,  and  precluded  the 
plaintiff  from  bringing  a  fresh  action  for  money  had  and  received. 
It  was  equally  clear  that  the  judgment  in  the  first  action  was  a 
merger  of  the  remedy  against  either  the  father  or  the  son;  and,  when 
the  action  was  brought  against  the  father,  the  answer  was  obvious. 
It  was  wholly  unnecessary,  therefore,  to  decide,  as  suggested  by 
Jervis,  C.J.,  that  the  recovery  in  the  first  action  changed  the  prop- 
erty; and  what  was  said  was  properly  treated  by  the  reporter  as 
amounting  only  to  a  "semble." 

On  the  other  hand,  there  is  a  series  of  decisions  shewing  that  a 
mere  recovery,  without  satisfaction,  has  not  the  effect  of  changing 
the  property.  In  Jenkins,  4th  Cent.  Case  88,  it  is  said:  "A,  in  tres- 
pass against  B  for  taking  an  horse,  recovers  damages;  by  this  re- 
covery, and  execution  done  thereon,  the  property  of  the  horse  is  vested 
in  B.  Solutio  pretii  em-ptionis  loco  habetur."  That  doctrine  is  acted 
upon  in  Cooper  v.  Shepherd,  3  C.  B.  266;  and,  though  the  marginal 


182  BRINSMEAD    V.   HARRISON.  [CHAP.  VI. 

note  treats  the  recovery  as  changing  the  property,  —  a  doctrine 
thrown  out  also  in  the  note  to  Barnett  v.  Brandao,  6  M.  &  G.  at  p. 
640,  —  the  plea  shews  that  the  damages  were  satisfied;  and  the 
judgment  of  Tindal,  C.J.,  shews  that  the  property  vests  in  the  de- 
fendant only  "on  pajTnent  of  the  damages."  To  the  same  effect 
are  the  observations  of  Holroyd,  J.,  in  Morris  v.  Robinson,  3  B. 
&  C.  196,  at  p.  206,  "Where  in  trover,"  he  says,  "the  full  value  of 
the  article  has  been  recovered,  it  has  been  held  that  the  property  is 
changed  by  judgment  and  satisfaction  of  the  damages.  Unless  the 
full  amount  is  recovered,  it  would  not  bar  even  other  actions  in 
trover."  To  the  same  effect  is  the  note  in  2  Wms.  Saund.  47  cc,  n. 
(z) .  It  may  also  be  proper  to  refer  to  the  note  to  the  case  of  Holmes  v. 
Wilson,  10  Ad.  &  E.  at  p.  511,  in  which  the  law  is  stated  by  the  re- 
porters probably  at  the  suggestion  of  one  of  the  judges.  The  good 
sense  of  the  thing  and  abundant  authority  thus  appearing,  we  feel 
bound  to  give  judgment  for  the  plaintiff  upon  the  aew  assigimient. 

In  order,  however,  to  act  upon  our  judgment  of  yesterday  and 
to-day,  it  must  be  recollected  that  the  present  defendant  "will  not 
be  liable  except  in  respect  of  a  wrong  other  than  that  which  was  the 
subject  of  the  action  against  the  other  wrong-doer. 

Another  point  arises  upon  the  new  assignment.  The  plaintiff  may 
have  acquired  the  property  in  the  goods  after  the  recovery  of  the 
judgment  in  the  fonner  action.  As,  however,  that  point  was  not 
argued,  we  prefer  resting  our  judgment  upon  the  main  point. 

The  judgment  therefore  will  be  for  the  defendant  upon  the  sixth 
plea,  and  for  the  plaintiff  upon  the  new  assignment. 

Judgment  accordingly. 

Note.  —  The  law  is  clear  to  the  effect  that  the  satisfaction  of  a 
judgment  for  the  full  value  of  a  chattel  passes  the  title  thereto  to 
the  defendant.  But  the  judgment  must  be  for  the  full  value  of  the 
chattel.     Dearth  v.  Spencer,  52  N.H.  213. 

In  most,  but  not  all,  jurisdictions  the  entry  of  such  judgment  does 
not  pass  the  title  to  the  defendant.  See,  in  accord  with  the  principal 
case,  Spivey  v.  Morris,  18  Ala.  254;  Atwater  v.  Tupper,  45  Conn. 
144;  Frick  v.  Davis,  80  Ga.  482,  485;  Hepburn  v.  Sewell,  5  Harr. 
&  J.  (Md.)  211,  infra;  Miller  v.  Hyde,  161  Mass.  472,  infra;  Tolman 
Co.  V.  Waite,  119  Mich.  341;  Smith  v.  Smith,  51  N.H.  571;  Singer 
Manufacturing  Co.  v.  Skillman,  52  N.J.  L.  263;  Osterhoutv.  Roberts, 
8  Cowen  (N.Y.),  43;  Lovejoy  v.  Murray,  3  Wall.  (U.S.)  1,  16.  But 
see,  contra,  Merrick's  Estate,  5  W.  &  S.  (Pa.)  9,  17;  Rogers  v.  Moore, 
Rice,  Law  (S.C.),  60;  Murrell  v.  Johnson's  Adtnr.,  1  Hen.  &  M. 
(Va.)  449. 


CHAP.  VI.]  MILLER   V.    HYDE.  183 

MILLER  V.  HYDE. 

161  Mass.  472.     1894. 

Replevin  of  a  horse.  Writ  dated  August  10,  1892.  The  case  was 
submitted  to  the  Superior  Coui't,  and,  after  judgment  for  the  de- 
fendant, to  this  court,  on  appeal,  on  agreed  facts,  in  substance  as 
follows. 

The  horse  in  question  was  purchased  in  July,  1890,  by  Herbert 
W.  Miller,  a  resident  of  Boston,  through  his  agent,  George  Bryden, 
of  Hartford,  in  the  State  of  Connecticut,  who  thereafter  kept  it  for 
him  in  Hartford.  Miller  died  in  September,  1890,  and  in  the  follow- 
ing November  the  plaintiff,  who  was  his  widow,  having  been  ap- 
pointed administratrix  of  his  estate,  demanded  the  horse  of  Bryden, 
who  refused  to  deliver  it  to  her,  claiming  to  own  a  half  interest 
therein.  In  March,  1891,  Bryden  sold  and  delivered  the  horse  as  his 
OA\Ti  propert}^  to  Joseph  C.  Davenport  and  Ada  L.  Hyde,  both  resi- 
dents of  Connecticut. 

Ancillary  administration  was  subsequently  granted  to  the  plain- 
tiff in  Connecticut,  and  in  November,  1891,  she  brought  an  action 
in  that  State  against  Bryden,  Davenport,  E.  A.  Hyde,  and  one 
Shillinglaw,  for  the  conversion  of  the  horse,  which  was  in  the  pos- 
session of  the  three  last  named  defendants,  and  attached  the  horse 
upon  mesne  process.  She  recovered  judgment  against  Bryden  only, 
on  which  execution  was  issued  and  delivered  to  an  officer,  who, 
after  an  ineffectual  demand  on  Bryden  for  its  pa^Tnent,  levied  on  the 
horse  and  advertised  it  for  sale,  but  before  he  had  sold  it  it  was 
replevied  from  him  by  Davenport. 

In  August,  1892,  Davenport  intrusted  the  horse  to  the  defendant, 
who  brought  it  into  this  Commonwealth,  where  it  was  replevied  by 
the  plaintiff.  When  this  action  was  begun,  the  judgment  recovered 
in  trover  against  Bryden,  who  was  financially  worthless,  remained 
unsatisfied,  and  the  replevin  suit  of  Davenport  against  the  officer 
was  still  pending  in  Connecticut. 

The  case  was  argued  at  the  bar  in  December,  1893,  and  after- 
wards was  submitted  on  the  briefs  to  all  the  judges. 

Barker,  J.  The  plaintiff  may  maintain  replevin  if  she  is  the 
owner  of  the  horse,  and  if  she  is  not  estopped  from  asserting  her 
ownership  against  the  defendant.  As  administratrix  of  her  hus- 
band's estate,  she  was  the  owner  when  she  brought  trover  in  Con- 
necticut against  Biyden,  the  bailee,  who  had  wrongfully  usurped 
dominion,  and  sold  and  delivered  the  horse  to  Davenport.  As  the 
horse  was  in  Connecticut  and  the  action  of  trover  was  in  the  courts 
of  that  State,  the  effect  of  the  suit  upon  her  title  would  be  deter- 
mined by  the  law  of  the  forum.  But  as  tlio  law  of  Connecticut  is  not 
Stated  as  an  agreed  fact,  we  must  apply  our  own.  Whether  a  plain- 


1S4  MILLER    V.    HYDE.  [cHAP.  VL 

tiff's  title  to  the  chattel  is  transferred  upon  the  entry  in  his  favor  of 
judgment  in  trover  has  not  been  decided  by  this  court.  Assuming 
that  in  early  times  title  to  the  chattel  was  transferred  to  the  defend- 
ant upon  the  entiy  of  judgment  for  the  plaintiff  in  trover,  at  present 
a  different  doctrine  is  generally  applied,  and  it  is  now  commonly 
held  that  title  is  not  transfeiTed  by  the  entiy  of  judgment,  but  re- 
mains in  the  plaintiff  until  he  has  received  actual  satisfaction;  see 
Atwater  v.  T upper,  45  Conn.  144;  Turner  v.  Brock,  6  Heisk.  50; 
Lovejoy  v.  Murray,  3  Wall.  1;  Ex  parte  Drake,  5  Ch.  D.  866;  Brins- 
mead  v.  Harrison,  L.  R.  7  C.  P.  547;  1  Greenl.  Ev.  §  533  and  note; 
and  the  law  has  been  commonly  so  administered  by  our  own  trial 
courts.  We  think  this  doctrine  better  calculated  to  do  justice,  and 
see  no  reason  why  we  should  not  hold  it  to  be  law. 

Whenever  the  title  passes,  as  there  has  been  no  sale  or  gift,  and 
no  title  by  prescription  or  by  possession  taken  upon  abandonment 
by  the  true  owner,  the  transfer  is  made  by  his  inferred  election  to 
recognize  as  an  absolute  ownership  the  qualified  dominion  wrong- 
fully assmned  by  the  defendant.  The  true  owner  makes  no  release 
in  terms  and  no  election  in  terms  to  relinquish  his  title ;  but  the  elec- 
tion is  inferred  by  the  law,  to  prevent  injustice.  Formerly  this 
election  was  inferred  when  judgment  for  the  plaintiff  was  entered, 
because  his  damages,  measured  by  the  value  of  the  chattel  and  in- 
terest, were  then  authoritatively  assessed,  and  the  judgment  brought 
to  his  aid  the  power  of  the  court  to  enforce  its  collection  out  of  the 
wrongdoer's  estate  or  by  taking  his  person;  and  this  was  deemed 
enough  to  insure  actual  satisfaction.  If  so,  it  was  just  to  infer  that 
when  he  accepted  these  rights  he  elected  to  relinquish  to  the  wrong- 
doer the  full  ownership  of  the  chattel.  An  election  was  not  inferred 
when  the  suit  was  commenced,  although  the  plaintiff  then  alleged 
tha,t  the  defendant  had  converted  the  chattel,  and  although  the 
writ  might  eontain  a  capias,  because,  owing  to  the  uncertainties 
littendaiit  upon  the  pui'suit  of  j'emedies  by  action,  it  was  not  just 
to  infer  such  an  election  while  ultimate  satisfaction  for  the  wrong 
was  but  pvoblernatical,  Forms  of  action  <ire  a  rneans  c?f  administer-, 
ing  justioe,  rather  than  an  end  in  themselves,  When  it  is  seen  that 
the  practical  result  of  a  form  of  action  is  a  failure  of  justice,  the 
courts  will  make  such  changes  as  are  necessary  to  do  justice.  If  the 
entry  of  judgment  in  trover  usually  gave  the  judgment  creditor  but 
an  empty  right,  it  was  not  just  to  infer  that  upon  acquiring  such  a 
right  he  relinquished  the  ownership  of  the  chattel,  and  the  rule  that 
required  the  inference  to  be  then  dra^\Ti  was  pi'operly  changed.  The 
ground  for  inferring  such  an  election  was  that  upon  the  entry  of 
judgment  he  acquired  an  effectual  right  in  lieu  of  his  property,  and 
the  doctrine  that  without  some  actual  satisfaction  tiie  inference  ol 
an  election  would  not  be  drawn  has  been  sho^vTi  by  experience  to  be 
negessary  to  the  administration  of  justice,  and  has  been  generally 


CHAP.  VI.]  MILLER    V.    HYDE.  185 

acted  upon,  and  the  modern  rule  adopted  that  the  plaintiff's  title  is 
not  transferred  by  the  entry  of  judgment,  but  is  transferred  by  actual 
satisfaction.  Trover  is  but  a  tentative  attempt  to  obtain  justice  for 
a  wrong,  and  until  pursued  so  far  that  it  has  given  actual  satisfaction 
ought  not  to  bar  the  plaintiff  from  asserting  his  title.  The  present 
doctrine  is  consistent  with  the  general  principle  stated  b}^  Lord 
Ellenborough  in  Drake  v.  Mitchell,  3  East,  251,  and  quoted  in  Van- 
uxem  V.  Burr,  151  Mass.  386,  389,  as  approved  in  Lord  v.  Bigelow, 
124  Mass.  185,  that  "a  judgment  recovered  in  any  form  of  action 
is  still  but  a  secmity  for  the  original  cause  of  action  until  it  be  made 
productive  in  satisfaction  to  the  party."  Whether  the  holder  of  an 
unsatisfied  judgment  in  trover  can  without  a  fresh  taking  maintain 
replevin  against  the  same  defendant,  or  is  restricted  to  one  action 
against  the  same  person  for  a  single  tort,  we  do  not  now  decide.  See 
Bennett  v.  Hood,  1  Allen,  47;  Trask  v.  Hartford  &  New  Haven  Rail- 
road, 2  Allen,  331;  Bliss  v.  New  York  Central  &  Hudson  River  Rail- 
road, 160  Mass.  447.  If  he  is  so  restricted,  it  is  not  because  the  o^vner- 
ship  of  the  chattel  has  been  transferred. 

But  the  present  plaintiff  has  done  more  than  to  take  judgment  in 
trover.  In  her  action  of  trover  she  caused  the  horse  to  be  attached 
upon  mesne  process,  and  since  obtaining  judgment  she  has  caused 
the  horse  to  be  seized  as  projjerty  of  Bryden  in  execution  on  the 
judgment  as  his  property,  and  to  be  kept  and  offered  for  sale  on  the 
execution  until,  as  it  was  about  to  be  so  sold,  it  was  replevied  by 
Davenport  from  the  officer  in  a  suit  between  them  which  is  still 
pending  in  Connecticut.  That  suit  is  not  a  bar  to  this  action,  be- 
cause it  is  not  between  the  same  parties.  White  v.  Dolliver,  113  j\Iass. 
400;  Newell  v.  Newton,  10  Pick.  470.  But  we  must  still  inquire 
whether,  assuming  that  the  plaintiff's  property  in  the  horse  was  not 
transferred  by  her  judgment  in  trover,  it  was  transferred  by  that 
judgment  taken  in  connection  with  the  facts  of  the  attachment  and 
levy,  and  also  whether  she  is  estopped  by  the  attachment  and  the 
levy  from  asserting  her  title  in  this  action. 

In  the  first  place,  the  doctrine  that  a  mortgagee  of  personalty  who 
attaches  the  mortgaged  goods  on  a  writ  against  the  mortgagor  can- 
not afterwards  enforce  his  mortgage,  is  not  in  point.  The  mort- 
gagee is  not  the  owner,  but  has  merely  a  lien,  and  may  well  be  held 
to  relinquish  that  lien  when  by  the  attachment  he  establishes  an- 
other. But  if  the  plaintiff  has  actual  ownership,  and  thus  the  full 
right  to  do  with  his  own  property  as  he  may  choose,  merely  procur- 
ing it  to  be  attached  on  mesne  process  or  seized  on  execution  as  the 
property  of  another  does  not  work  a  change  of  ownership.  The 
owner  does  not  sell  or  give  away  his  goods.  In  cases  which  are  likely 
to  occasion  such  conduct,  there  usually  is,  as  in  the  present  case,  a 
disputed  title;  and  it  is  with  tlie  hope  of  avoiding  litigation  over  it 
that  the  real  owner  consents  that  the  chattel  shall  for  a  sjjecial  pur- 


186  MILLER    V.    HYDE.  [CHAP.  VI. 

pose  only  be  treated  as  the  property  of  another.  This  is  "consistent 
with  an  intention  ultimately  to  assert  title  should  circumstances 
render  it  desirable  for  him  so  to  do  " ;  and  he  may  well  wait  to  see  the 
issue,  which  may  be  such  as  to  avoid  the  litigation  of  the  question 
of  title.  See  Mackay  v.  Holland,  4  Met.  69,  74;  Dewey  v.  Field, 
4  ^let.  381,  384;  Johns  v.  Church,  12  Pick.  557;  Bursley  v.  Hamilton, 
15  Pick.  40,  43;  Edmunds  v.  Hill,  133  Mass.  445,  446.  Nor  is  there 
any  good  reason  why  such  a  use  of  his  own  property  by  a  plaintiff  in 
trover  should  be  held  to  devest  him  of  his  ownership  when  it  would 
not  have  that  effect  in  other  forms  of  action.  In  trover  he  is  in  legal 
effect  asserting  by  his  suit  that  the  title  is  and  will  remain  in  him- 
self until  he  receives  satisfaction  on  a  judgment,  and  his  subjection 
of  the  chattel  to  attachment  or  to  seizure  on  execution  is  simply  a 
use  which  he  chooses  to  make  of  his  own  property  which  does  not 
devest  him  of  title  or  hamper  him  in  the  subsequent  assertion  of  his 
owTierehip  except  by  the  rules  of  estoppel.  The  case  of  Ex  'parte 
Drake,  above  cited,  is  an  authority  to  the  point  that  a  plaintiff  who 
has  brought  an  action  of  detinue  and  taken  judgment  both  for  the 
detention  and  the  value  of  the  chattel,  and  has  also  proved  his  judg- 
ment in  bankruptcy  after  having  had  the  chattel  seized  on  execu- 
tion as  the  defendant's  property,  may  nevertheless  assert  his  owner- 
ship and  have  process  to  restore  to  him  the  chattel  in  specie.  In  such 
cases  courts  look  to  substance  rather  than  form,  and  do  not  by  in- 
ferring an  election  or  a  waiver  deprive  of  his  property  a  plaintiff 
who  has  unfortunately  resorted  to  some  futile  method  of  proem-ing 
redress. 

In  the  present  case,  the  natural  construction  to  be  put  upon  the 
plaintiff's  conduct  in  attaching  and  beginning  a  lev>^  upon  her  own 
horse  in  a  suit  asserting  her  o"v\Tiership  is,  that,  while  she  contended 
that  in  fact  the  horse  was  her  own,  she  consented  that,  if  litigation 
as  to  the  true  state  of  title  could  be  avoided  by  so  selling  the  horse 
that  the  proceeds  of  the  sale  should  be  applied  upon  her  claim  for 
damages,  she  would  in  that  event  no  longer  assert  her  paramount 
title.  Her  implied  offer  not  having  been  accepted,  and  Davenport 
having  rendered  impossible  the  accomplishment  of  her  plan  to  avoid 
further  litigation,  she  could  thereupon  say  that  all  which  had  gone 
before  was  provisional  upon  the  completion  of  the  levy,  and  could 
enforce  her  right  of  property  by  any  proper  action  against  Daven- 
port, or  any  one  who  might  thereafter  take  wrongful  possession  of 
her  horse,  unless  she  was  barred  by  the  rules  of  estoppel. 

Upon  the  question  of  estoppel,  it  is  material  to  the  decision  of  the 
present  case  to  consider  only  whether  she  is  estopped  as  to  the  pres- 
ent defendant  or  his  principal  Davenport.  Whether  she  has  rendered 
Bryden,  or  the  officer  who  made  the  attachment  or  the  levy  in  the 
Bryden  suit,  liable  to  costs,  expenses,  or  chance  of  loss,  is  not  ma- 
terial upon  the  question  whether  she  is  barred  by  the  doctrines  of 


CHAP.  VI.]  MILLER    V.    HYDE.  l87 

estoppel  from  maintaining  the  present  action.  She  is  now  prosecut- 
ing one  of  several  successive  wrongdoers  for  a  fresh  interference  with 
the  possession  of  her  property;  and  neither  the  present  defendant, 
Hyde,  nor  Davenport,  for  whom  he  claims  to  be  acting  as  agent,  has 
done  or  suffered  anything,  or  been  put  to  any  liability  by  reason  of 
which  the  plaintiff  should  be  estopped  from  asserting  her  title.  Upon 
the  facts,  Davenport  in  taking  the  horse  in  replevin  did  not  rely 
upon  the  attachment  or  levy,  but  acted  in  denial  of  their  validity; 
and  Hyde  is  not  sho"vsTi  to  have  been  influenced  by  them  in  consent- 
ing to  become  Davenport's  agent  in  keeping  the  horse,  or  in  any 
manner.  Neither  Hyde  nor  Davenport  is  sho\\Ti  to  have  changed 
his  position  or  course  of  conduct  relj'ing  upon  the  plaintiff's  action 
in  causing  the  attachment  or  the  levy,  and  the  plaintiff  is  not  estopped 
by  it  from  maintaining  the  present  action.  In  the  opinion  of  a  ma- 
jority of  the  court,  the  result  must  be. 

Judgment  set  aside,  and  judgment  for  the  plaintiff  ordered. 

Holmes,  J.  As  the  judges  are  not  unanimous  it  becomes  neces- 
sary for  me  to  state  my  views,  which  othei-wise  I  should  not  do,  as 
they  have  not  persuaded  my  brethren. 

I  am  of  opinion  that  the  plaintiff  ought  to  be  barred  in  this  action 
by  her  recovery  of  judgment  in  trover  for  the  same  horse.  I  am 
aware  that  the  doctrine  that  title  passes  by  judgment  without  satis- 
faction is  not  in  fashion,  but  I  never  have  been  able  to  understand 
any  other.  It  always  has  seemed  to  me  that  one  whose  propert}^  has 
been  converted  has  an  election  between  two  courses,  that  he  may 
have  the  thing  back  or  may  have  its  value  in  damages,  but  that  he 
cannot  have  both ;  that  when  he  chooses  one  he  necessarily  gives  up 
the  other,  and  that  by  taking  a  judgment  for  the  value  he  does  choose 
one  conclusively.  He  cannot  have  a  right  to  the  value  of  the  thing, 
effectual  or  ineffectual,  and  a  right  to  the  thing  at  the  same  time. 
The  defendant  is  estopped  by  the  judgment  to  deny  the  plaintiff's 
right  to  the  value  of  the  thing.  Usually  estoppels  by  judgment  are 
mutual.  It  would  seem  to  follow  that  the  plaintiff  also  is  estopped 
to  deny  his  right  to  the  value  of  the  thing,  and  therefore  is  estopped 
to  set  up  an  inconsistent  claim.  In  general  an  election  is  determined 
by  judgment.  Butler  v.  Hildreth,  5  Met.  49;  Bailey  v.  Hervey,  135 
Mass.  172,  174;  Goodyear  Dental  Vulcanite  Co.  v.  Caduc,  144  Mass. 
85,  86;  Raphael  v.  Reinstein,  154  Mass.  178,  179.  I  know  of  no  rea- 
son why  a  judgment  should  be  less  conclusive  in  this  case  than  any 
other.  Of  course,  I  am  speaking  of  a  judgment  for  the  value  of  the 
chattel,  not  of  one  giving  nominal  damages  for  the  taking.  The  ar- 
gument from  election  is  adopted  in  White  v.  Philbrick,  5  Greenl.  147, 
150,  which  so  far  as  I  know  is  still  the  law  of  Maine,  notwithstand- 
ing the  remark  in  Murray  v.  Lovejoy,  2  Cliff.  191,  198.  See  also 
Shaw,  C.J.,  in  Butler  v.  Hildreth,  5  Met.  49,  53. 


188  MILLER   V.    HYDE.  [CHAP.  VI. 

The  most  conspicuous  cases  which  have  taken  a  different  view 
speak  of  the  hardship  of  a  man's  losing  his  property  without  being 
paid  for  it,  and  sometimes  cite  the  dictum  in  Jenkins,  4th  Cent., 
Case  88,  Solutio  pretii  eniptionis  loco  habetur,  which  is  dogma,  not 
reasoning,  or,  if  reasoning,  is  based  on  the  false  analog}^  of  a  sale; 
but  they  leave  the  argument  which  I  have  stated  mianswered,  not, 
as  I  think,  because  the  judges  deemed  it  unworthy  of  ans\\'^er  or  met 
by  paramount  considerations  of  policy,  but  because  they  did  not 
have  either  that  or  a  clue  to  the  early  cases  before  their  mind.  Love- 
joy  V.  Murray,  3  Wall.  1,  17;  Brinsmead  v.  Harrison,  L.  R.  6  C.  P. 
584,  587;  s.  c.  L.  R.  7  C.  P.  547,  554.  It  is  not  the  practice  of  the 
English  judges  to  overrule  the  common  law  because  they  disapprove 
it,  and  to  do  so  without  discussion.  In  Brinsmead  v.  Harrison,  Mr. 
Justice  WiLLEs  thought  he  was  proving  that  the  common  law  always 
had  been  in  accord  with  his  position.  So  far  as  the  question  of  policy 
goes,  it  does  not  seem  to  me  that  the  possibility  —  it  is  only  the 
possibility  —  of  an  election  tm-ning  out  to  have  been  unwise,  is  a 
sufficient  reason  for  breaking  in  upon  a  principle  which  must  be 
admitted  to  be  sound  on  the  whole,  and  for  overthromng  the  doc- 
trine of  the  common  law  by  a  judicial  fiat.  I  am  not  informed  of  any 
statistics  which  establish  that  judgments  for  money  usually  give  the 
judgment  creditor  only  an  empty  right. 

That  the  view  which  I  hold  is  the  view  of  the  common  law  I  think 
may  be  proved  by  considering  what  was  the  theory"  on  which  the 
remedies  of  trespass  and  replevin  were  given.  In  Y.  B.  19  Hen.  VI. 
65,  pi.  5,  Newton  says:  "If  you  had  taken  my  chattels  it  is  at  my 
choice  to  sue  replevin,  which  shows  that  the  property  is  in  me,  or  to 
sue  a  writ  of  trespass,  which  shows  that  the  property  is  in  the  taker; 
and  so  it  is  at  my  vnW  to  waive  the  property  or  not."  In  6  Hen.  YII. 
8,  pi.  4,  Ya visor  uses  similar  language,  and  adds,  "And  so  it  is  of 
goods  taken,  one  may  devest  the  property  out  of  himself,  if  he  will, 
by  proceedings  in  trespass,  or  demand  property  by  reple\an  or  vrrii  of 
detinue,"  if  he  prefers.  There  is  no  doubt  that  the. old  law  was  that 
replevin  affirms  property  in  the  plaintiff  and  trespass  disaffirms  it, 
and  that  the  plaintiff  has  election.  Bro.  Abr.  Trespass,  pi.  134. 
18  Yin.  Abr.  69  (E).  Anderson  and  Warberton,  J  J.,  in  Bishop  v. 
Montague,  Cro.  Eliz.  824.  The  proposition  is  made  clearer  when  it 
is  remembered  that  a  tortious  possession,  at  least  if  not  felonious, 
carried  vnth  it  a  title  by  wrong  in  the  case  of  chattels  as  well  as  in 
the  case  of  a  disseisin  of  land,  as  appears  from  the  page  of  Viner  just 
cited,  and  as  has  been  shown  more  fully  by  the  learned  researches  of 
Mr.  Ames  and  Mr.  Maitland,  3  Harv.  Law  Rev.  23,  326.  See  1  Law 
Quarterly  Rev.  324.  I  do  not  regard  that  as  a  necessarj^  doctrine,  or 
as  the  law  of  Massachusetts,  but  it  was  the  common  law,  and  it 
fixed  the  relations  of  trespass  and  reple\'in  to  each  other.  Trespass, 
and  on  the  same  principle  trover,  proceed  on  the  footing  of  afl^rming 


CHAP.  VI.]  MILLER    V.    HTDH.  189 

property  in  the  defendant,  and  of  ratifying  the  act  of  the  defendant 
which  ah-eady  has  affirmed  it.  I  do  not  see  on  what  other  ground  a 
judgment  for  the  value  can  be  justified.  If  the  title  still  is  in  doubt, 
or  remains  in  the  plaintiff,  the  defendant  ought  not  to  be  charged 
for  anything  but  the  tortious  taking.  Again,  cannot  the  plaintiff 
take  the  converted  chattel  on  execution?  And  on  what  principle  can 
he  do  so  if  it  does  not  yet  belong  to  the  defendant? 

I  say  but  a  word  as  to  the  practical  difficulties  of  the  prevailing 
rule.  No  doubt  they  can  be  met  in  one  way  or  another.  Suppose  the 
plaintiff  after  judgment  were  to  retake  the  chattel  by  his  ovra  act, 
it  would  strike  me  as  odd  to  say  that  this  satisfied  the  judgment, 
and  as  impossible  to  say  that  it  satisfied  the  whole  judgment,  which 
was  for  the  tort,  as  well  as  for  the  value  of  the  property.  Yet  on  the 
view  which  I  oppose  I  presume  that  the  judgment  could  not  be  col- 
lected. See  Coombe  v.  Sansom,  1  Dowl.  &  Ry.  201. 

It  seems  to  me  that  the  opinion  which  I  hold  was  the  prevailing 
one  in  England  until  Brinsmead  v.  Harrison.  Bishop  v.  Montague, 
Cro.  Eliz.  824.  Fenner,  J.,  in  Brown  v.  Wootton,  Cro.  Jac.  73,  74; 
s.  c.  Yelv.  67;  Moore,  762.  Adams  v.  Broughton,  2  Strange,  1078; 
s.  c.  Andrews,  18,  19.  Buckland  v.  Johnson,  15  C.  B.  145,  157,  162, 
163.  Sergt.  Manning's  note  to  6  Man.  &  Gr.  640.  See  Lamine  v. 
Dorrell,  2  Ld.  Ra\Tn.  1216,  1217.  And  I  should  add  that  I  see  a  relic 
of  the  ancient  and  true  doctrine  in  the  otherwise  unexplained  notion 
that  when  execution  is  satisfied  the  title  of  the  defendant  relates 
back  to  the  date  of  the  conversion.  Hepburn  v.  Sewell,  5  Har.  & 
J.  211.  Smith  V.  Smith,  51  N.H.  571,  and  50  N.H.  212.  Compare 
Alwater  v.  Tupper,  45  Conn.  144,  147,  148. 

The  only  authorities  binding  upon  us  are  the  ancient  evidences 
of  the  common  law  as  it  was  before  the  Revolution  and  our  o"^ti 
decisions.  I  have  sho■\^^l  what  I  think  was  the  common  law.  Our 
owTi  decisions  leave  the  question  open  to  be  decided  in  accordance 
with  it.  Caynpbell  v.  Phelps,  1  Pick.  62,  65,  70.  Bennett  v.  Hood, 
1  Allen,  47.  Many  cases  in  other  States  are  collected  in  Freem. 
Judgments  (4th  ed.),  §  237. 

If  I  am  right  in  my  general  views,  they  apply  to  this  case.  The 
plaintiff  recovered  her  judgment  in  Connecticut,  to  be  sure,  as  ancil- 
lary administrator  there,  but  the  horse  was  there,  and  she  was  en- 
titled to  it  there,  so  that  her  judgment  recovered  there  passed  the 
title.  Like  any  other  transfer  of  a  chattel  valid  in  the  place  where  it 
was  made  and  where  the  chattel  was  situated,  it  will  be  respected 
elsewhere.  The  Connecticut  law  was  not  put  in  evidence,  and  there- 
fore we  must  presume  that  a  judgment  there  has  whatever  effect  we 
attribute  to  it  on  the  principles  of  the  common  law.  It  is  not  argued 
that  the  defendant  stands  any  worse  than  Bryden,  against  whom 
the  judgment  was  recovered  and  from  whom  the  defendant's  bailor 
bought  the  horse. 


190  MILLER    V.    HYDE.  [cHAP.  VI. 

Knowlton,  J.  I  am  of  opinion  that  the  judgment  in  this  case 
should  be  for  the  defendant.  It  is  a  general  rule  of  law  that  when  one 
is  entitled  to  either  of  two  inconsistent  remedies  for  a  wrong  done 
him,  the  pursuit  of  one  of  them  so  far  as  to  affect  the  interests  of  the 
other  party  is  a  conclusive  election,  and  a  waiver  of  the  other. 
Hooker  v.  Olmstead,  6  Pick.  481.  Butler  v.  Hildreth,  5  Met.  49,  53. 
Arnold  v.  Richmond  Iron  Works,  1  Gray,  434,  440.  Connihan  v. 
Thotnpson,  111  Mass.  270.  Washburn  v.  Great  Western  Ins.  Co.,  114 
Mass.  175.  Ormshy  v.  Dearborn,  116  IMass.  386.  Seavey  v.  Potter, 
121  Mass.  297.  Bailey  v.  Hervey,  135  Mass.  172,  174.  Goodyear 
Dental  Vulcanite  Co.  v.  Caduc,  144  Mass.  85,  86.  Raphael  v.  Rein- 
stein,  154  Mass.  178.  It  is  under  this  rule  that  the  owner  of  property 
WTongfuUy  taken  by  another  is  held  to  be  precluded  from  claim- 
ing it  after  he  has  elected  to  recover  the  value  of  it  from  the  wrong- 
doer. The  property  passes,  not  because  there  has  been  a  sale,  but 
because  the  o^^^ler  has  elected  to  receive  instead  of  it  that  which 
represents  it,  and  because  it  would  be  unjust  to  permit  him  to  take 
the  property  after  ha\4ng  chosen  the  money  which  is  its  equivalent. 
The  principal  question  in  cases  of  this  kind  is  at  what  stage  of  the 
proceedings  the  owner  shall  be  deemed  to  have  made  an  election  that 
binds  him.  On  principle,  and  as  a  general  rule,  he  should  be  bound 
by  the  election  he  makes,  if  in  making  it  he  goes  so  far  as  to  affect 
the  rights  or  interests  of  the  other  party.  It  would  be  unjust,  when 
he  may  proceed  only  in  one  or  the  other  of  two  opposite  directions, 
that  he  should  go  forward  in  one  direction  in  such  a  way  as  materially 
to  affect  the  other  party,  and  then  turn  backward  and  go  on  in  the 
other,  and-  compel  his  adversary  to  satisfy  him  in  a  different  way. 

In  very  early  cases  it  was  held  that  the  owner  of  property  unlaw- 
fully taken  makes  a  conclusive  election  of  his  remedy  which  passes 
the  property  as  between  the  parties  when  he  takes  judgment  for  the 
value  of  it  against  the  wi'ongdoer.  He  thereby  puts  his  claim  for 
property  of  which  he  chooses  to  say  that  he  has  been  devested  into 
the  form  of  a  debt  apparent  of  record,  for  the  satisfaction  of  which 
he  may  at  any  time  have  execution  from  the  court. 

But  where  nothing  more  is  done  than  to  take  a  judgment  without 
security  there  are  considerations  which  have  led  in  many  courts  to  a 
modification  of  the  rule  in  favor  of  the  owTier.  Sometimes  when  he 
brings  his  suit  in  trover  he  is  unable  to  find  the  property,  and  very 
often  his  judgment  for  the  value  of  it  cannot  be  made  available.  In 
taking  judgment  he  merely  puts  in  form  and  settles  by  adjudication 
a  claim  for  the  value  of  the  property,  to  which  he  was  entitled  from 
the  beginning  if  he  chose  to  enforce  it.  He  does  not  otherwdse  dis- 
turb the  defendant  or  his  property,  and,  while  it  would  doubtless 
be  more  logical  to  say  that  he  is  concluded  by  his  election  as  soon 
as  he  has  recovered  judgment,  it  is  perhaps  a  practical  rule  which 
will  more  generally  work  out  justice  to  hold  that  if  he  does  nothing 


CHAP.  VI.]  MILLEE    V.    HYDE.  191 

more  to  collect  the  money,  and  if  he  proceeds  wathin  a  reasonable 
time,  he  may  still  take  the  property  as  his  oyyn.  But  if,  having  fixed 
the  liability  of  the  defendant  for  a  debt  by  taking  judgment,  he  says 
by  his  conduct  that  he  intends  to  collect  the  debt,  and  does  that 
which  affects  the  interests  of  the  defendant  in  that  particular,  he 
should  be  deemed  to  have  made  his  election  conclusive. 

The  cases  which  say  that  the  rights  of  the  parties  in  regard  to  the 
title  are  fixed,  not  by  taking  judgment,  but  by  obtaining  satisfac- 
tion, cannot  mean  that  one  may  take  judgment  for  the  full  value  of 
the  property,  and  collect  one  half  or  two  thirds  of  the  amount,  and 
may  afterward  take  and  hold  the  property  itself  under  his  original 
title.  Many  of  these  cases  were  in  jurisdictions  where  attachment 
on  mesne  process  is  not  permitted,  and  where  there  is  no  secm'ity  for 
a  judgment  when  it  is  rendered.  So  far  as  I  am  aware,  there  is  no 
case  in  which  is  considered  the  effect  of  taking  judgment  in  a  suit 
where  there  was  an  attachment  which  secured  the  collection  of  the 
judgment,  or  the  effect  of  a  partial  satisfaction,  or  of  a  proceeding 
after  judgment  to  enforce  it  by  a  le\'y^  on  the  property.  It  seems  to 
me  there  is  good  ground  for  holding  that,  when  one  undertakes  to 
collect  the  value  of  his  property  by  making  an  attachment  to  secure 
the  judgment  which  he  may  obtain,  and  then  prosecutes  his  claim  to 
judgment,  he  has  done  that  which  affects  the  rights  of  the  other 
party  far  more  than  the  mere  recovery  of  a  judgment  on  an  unse- 
cured claim.  But  however  that  may  be,  when  after  judgment  the 
plaintiff  proceeds  to  obtain  satisfaction  by  a  le\';y'  on  the  defendant's 
property,  and  much  more  when  he  levies  on  the  property  for  the 
value  of  which  he  obtained  judgment,  and  advertises  it  for  sale  as 
the  property  of  the  defendant,  he  should  be  held  to  have  fixed  his 
rights  and  the  rights  of  the  other  party  in  regard  to  the  title  beyond 
his  power  to  change  them.  By  taking  the  defendant's  property  to 
satisfy  the  execution  he  subjects  him  to  the  legal  costs  and  expenses 
attendant  upon  the  levy,  and  deprives  him  of  what  otherwise  he 
would  have.  Even  if  he  afterguards  returns  the  property,  he  puts 
upon  him  the  risk  of  loss  or  depreciation  in  value  while  it  is  held. 
If  the  property  had  not  l^een  taken  on  execution,  the  defendant 
might  have  negotiated  to  obtain  the  means  of  satisfying  the  execu- 
tion by  disposing  of  the  property,  or  he  might  have  attempted  to 
satisfy  it  in  some  other  way.  He  may  have  relaxed  his  efforts,  rely- 
ing on  the  levy,  and  if  the  plaintiff  is  permitted  to  abandon  the  levy 
and  proceed  in  another  way  he  may  ultimately  suffer  loss  on  account 
of  what  the  plaintiff  did.  This  is  equally  true  whether  the  property 
is  that  for  which  the  plaintiff  recovered  his  judgment  or  not,  and  if 
it  is  the  same  the  plaintiff's  act  is  a  distinct  and  positive  assertion 
that  the  property  is  the  defendant's  by  reason  of  his  judgment  and 
of  his  purpose  to  collect  the  judgment  and  to  apply  the  proceeds  of 
the  property  in  the  satisfaction  of  it.   Unless  the  rule  stated  at  the 


192  EX    PARTE    DRAKE.  [cHAP.  VI. 

beginning  of  this  opinion  is  to  be  abrogated  altogether,  it  must  be 
held  that  when  a  plaintiff  has  elected  to  take  judgment  for  the  full 
value  of  property  converted,  and  has  then  levied  the  execution  upon 
property  of  the  defendant  which  is  subject  to  be  taken  on  execution 
—  especially  if  it  is  the  property  converted  —  he  is  thereby  pre- 
cluded from  reversing  his  election  and  taking  the  converted  property 
under  his  original  title. 

The  case  of  Ex  parte  Drake,  5  Ch.  D.  866,  cited  in  the  opinion  of 
the  majority  of  the  com-t,  was  an  action  of  detinue,  where  by  the 
terms  of  the  judgment  the  plaintiff  was  to  have  either  the  property 
or  the  ascertained  value  of  it. 

If  the  plaintiff  cannot  abandon  her  judgment  and  levy,  and  re- 
claim the  horse  as  against  Bryden,  she  cannot  as  against  this  de- 
fendant, who  is  in  privity  with  Bryden  through  Davenport,  who  is  a 
bona  fide  purchaser  from  Bryden,  So  far  as  the  pending  proceedings 
in  Connecticut  under  the  levy  and  the  subsequent  replevin  suit 
there  affect  the  title,  they  are  binding  on  the  plaintiff  here,  for  the 
officer  was  acting  in  enforcement  of  her  rights  by  her  direction,  and 
she  is  therefore  in  privity  with  him.  His  relation  to  her  is  very  dif- 
ferent from  that  of  a  mere  bailee. 

The  Chief  Justice  concurs  in  this  opinion. 


Ex  parte   DRAKE.) 

L.  R.  5  Ch.  Div.  866.     1877. 

This  was  an  appeal  from  a  decision  of  Mr.  Registrar  Pepys,  sit- 
ting as  Chief  Judge  in  Bankruptcy. 

In  March,  1875,  James  Ware,  a  carrier  and  carman,  hired  a  grey 
mare  of  Daniel  Drake.  He  neglected  to  return  the  mare  when  re- 
quired by  Drake  to  do  so,  and  in  May,  1876,  Drake  commenced  an 
action  in  the  Exchequer  Division  against  Ware  for  the  recover\^  of 
the  mare.  The  action  was  tried  on  the  2d  of  December,  1876,  when 
a  verdict  was  found  for  the  Plaintiff  for  £60,  the  value  of  the  mare, 
such  amount  to  be  reduced  to  Is.  if  the  mare  was  returned  to  the 
Plaintiff  on  the  4th  of  December,  and  £25  damages  for  the  wrongful 
detention.  And  the  Judge  directed  judgment  for  £85,  and  the  costs 
of  the  action.  The  Defendant  did  not  return  the  mare,  and  on  the 
6th  of  December,  the  Plaintiff's  solicitor's  bill  of  costs  was  taxed  at 
£70  lO.s.  2d.  At  an  earlier  hour  on  the  same  day  Ware  had  filed  a 
fiquidation  petition,  and  notice  of  the  petition  was  given  to  the 
Plaintiff's  solicitor  by  Ware's  solicitor  when  they  attended  the  taxa- 
tion. On  the  same  day  Drake  signed  judgment  in  the  action  for 
£155  lOs.  2d.,  and  issued  and  lodged  with  the  sheriff  of  Middlesex 
a  writ  of  ^.  fa.  on  the  judgment.  On  the  7th  of  December  the  sheriff 


CHAP.  VI.]  EX    PARTE    DIL\KE,  193 

levied  on  the  goods  of  Ware,  not  including  the  maxe  An  order  was 
afterwards  made  by  the  Court  of  Banlo-uptcy  restraining  the  pro- 
ceedings under  the  execution,  and  the  sheriff  wthdrew.  The  first 
meeting  of  the  creditoi's  was  held  on  the  5th  of  January,  1877,  when 
Drake  tendered  a  proof.  His  affidavit  stated  the  verdict  in  the  ac- 
tion, the  signing  of  judgment,  the  taxation  of  the  costs,  and  that  the 
mare  had  not  been  delivered  to  him,  nor  the  £85,  or  the  amount  of 
the  taxed  costs,  paid  to  him.  The  affidavit  went  on  to  state  that 
Ware  was  also,  at  the  date  of  the  institution  of  the  liquidation  pro- 
ceedings, and  still  was,  indebted  to  him  in  the  sum  of  £264  for  hh'e 
of  the  mare  from  the  25th  of  March,  1875,  to  the  2d  of  December, 
1876,  for  w^hich  sum  he  had  not  received  any  satisfaction  or  security. 
He  further  said  that  he  had  not  received  any  satisfaction  or  security 
for  the  amount  recovered  by  him  under  the  judgment,  except  so  far 
as  the  same  was  secured  by  the  goods  levied  upon  by  the  sheriff. 
This  proof  was  objected  to  by  the  debtor,  on  the  ground,  as  to  the 
£264,  that  an  action  was  "pending  in  the  Common  Pleas  Division 
by  the  debtor  against  Drake,  in  which  Drake  had  set  up  a  counter- 
claim for  £100  for  hire  of  the  mare,  upon  which  issue  had  been  joined, 
and  as  to  the  costs  claimed,  on  the  ground  that  the  judgment  was 
not  produced.  This  objection  was  marked  on  the  proof  and  signed 
by  the  chairman  at  the  meeting.  Drake  voted  at  the  meeting.  The 
proof  was  afterwards  objected  to  by  the  trustee  in  the  liciuidation, 
as  to  the  £284,  on  the  ground  that  no  contract  for  hire  was  ever 
entered  into  by  the  debtor.  On  the  10th  of  Januarj'',  1877,  Drake 
applied  to  the  Court  in  the  liquidation  for  an  order  that  the  trustee 
should  deliver  to  him  the  goods  which  had  been  seized  by  the  sheriff, 
or  that  he  should,  out  of  the  first  assets  belonging  to  the  estate  of 
Ware  which  should  come  to  his  hands,  pay  to  Drake  the  £155  10s. 
2d.  due  to  him  under  the  judgment,  with  interest  until  pajanent. 
This  motion  was  by  consent  turned  into  a  special  case.  Upon  the 
hearing  of  the  case  on  the  13th  of  February,  the  Registrar  decided 
that  Drake  w^as  not  entitled  to  any  relief.  At  this  time  Drake  did 
not  know  where  the  mare  was.  But  on  the  13th  of  March  he  acci- 
dentally discovered  her  in  the  possession  of  the  debtor,  whose  serv- 
ant was  driving  her.  The  debtor  was,  with  the  permission  of  the 
trustee,  using  her  in  his  business.  Drake  thereupon  instructed  the 
sheriff  to  seize  the  mare  under  the  writ  of  fi.  fa.,  and  the  sheriff  on 
the  same  day  forcibly  removed  her  from  the  delator's  possession.  On 
the  14th  of  March  the  trustee  obtained  in  the  Com-t  of  Banlcruptcy 
an  interim  injunction  restraining  the  sheriff  and  Drake  from  selling 
the  mare,  and  on  the  27th  of  March  the  registrar  made  this  injunc- 
tion perpetual,  and  ordered  that  the  mare  should  be  forthwith  de- 
livered up  to  the  trustee. 
Drake  appealed. 


194  ex  parte  drake.  [chap.  vi. 

Jessel,  M.R.  :  — 

The  first  question  which  we  have  to  decide  is  one  which  is  simple 
enough  to  state  —  in  whom  was  the  property  in  this  grey  mare  at 
the  time  when  she  was  taken  possession  of  by  the  sheriff?  The  prop- 
erty was  originally  in  Drake.  She  had  been  hired  from  him  by  Ware, 
the  liquidating  debtor.   The  hiring  was  put  an  end  to;  the  debtor 
was  requested  by  Drake  to  return  her,  and  he  failed  to  do  so.   The 
action  of  detinue  was  brought  by  Drake,  and  he  recovered  judgment 
in  the  ordinary  form.  After  that  the  plaintiff  issued  execution  on  his 
judgment,  but  the  execution  was  defeated  by  the  prior  act  of  bank- 
ruptcy which  overrode  it,  so  that  the  plaintiff  got  nothing  by  his  ex- 
ecution. After  the  filing  of  the  liquidation  petition  he  took  in  what 
has  been  called  a  proof  for  the  judgment  debt  and  the  costs  of  the 
action.  Some  time  after  this  he  accidentally  saw  the  mare  in  the  pos- 
session of  the  debtor's  servant,  and  he  directed  the  sheriff's  officer  to 
seize  her  under  the  old  WTit.  This  was  not  a  proper  mode  of  proceed- 
ing.  The  trustee  then  obtained  from  the  registrar  the  order  for  an 
injunction,  and  for  the  delivery  of  the  mare  to  him;  and  from  that 
order  the  appeal  is  brought.  The  first  question  is,  in  whom  was  the 
property  in  the  mare  when  she  was  seized  by  the  sheriff's  officer?  I 
am  of  opinion  that,  after  the  decision  in  Brinsmead  v.  Harrison,  Law 
Rep.  7  C.  P.  547,  we  are  bound  to  hold  that  the  property  was  never 
divested  from  Drake.  He  had  the  property  unless  something  which 
he  did  under  the  judgment  divested  it  from  him.  It  is  clear  that  the 
judgment  itself  did  not  divest  the  property.    Did  the  execution 
divest  it?  Upon  that  question  the  authority  of  Brinsmead  v.  Harri- 
son is  distinctly  in  point.  It  shews  that  the  execution  does  not  divest 
the  property  unless  there  is  satisfaction  of  the  judgment.  There  are 
several  ways  in  which  an  execution  might  produce  nothing.    One 
way  would  be  if  the  amount  produced  by  the  sale  of  the  goods  seized 
did  not  cover  the  expenses  of  the  sale.  Another  way  would  be  if,  as 
happened  in  the  present  case,  there  was  a  prior  act  of  bankruptcy 
which  nullified  the  execution.  The  judgments  in  Brinsmead  v.  Har- 
rison, and  especially  that  of  Mr.  Justice  Willes,  shew  that  the  theory 
of  the  judgment  in  an  action  of  detinue  is  that  it  is  a  kind  of  invol- 
untary sale  of  the  plaintiff's  goods  to  the  defendant.   The  plaintiff 
wants  to  get  his  goods  back,  and  the  court  gives  him  the  next  best 
thing,  that  is,  the  value  of  the  goods.  If  he  does  not  get  that  value, 
then  he  does  not  lose  his  property  in  the  goods.  On  the  appeal  to  the 
Exchequer  Chamber,  in  Brins?nead  v.  Harrison,  the  only  two  judges 
who  expressed  any  opinion  on  the  point  confirmed  the  view  of  INIr. 
Justice  Willes,   Mr.  Justice  Blackburn  said:  "I  observe  that  the 
Court  of  Common  Pleas,  in  their  judgment  upon  the  demurrer  to  the 
new  assignment,  which  is  not  now  before  us,  held  that  by  the  re- 
covery in  the  first  action  without  satisfaction  the  property  in  the 
chattel  did  not  pass.   I  should  be  inclined  to  agree  to  this,  but  it  is 


CHAP.  VI.]  EX    PARTE    DRAKE.  195 

unnecessary  to  express  an  opinion  upon  it."  And  Mr.  Justice  Lush 
said:  "The  judges  who  decided  those  American  cases  seem  to  have 
thought  that,  by  holding  that  recoveiy  against  one  of  two  ^^^•ong- 
doers  was  a  bar  to  an  action  against  the  other,  they  would  be  decid- 
ing that  the  property  in  the  chattel  passed  by  the  recovery;  but  I  do 
not  think  that  by  any  means  follows;  and,  as  at  present  advised,  I 
am  prepared  to  adhere  to  the  judgment  of  the  court  below  upon  both 
points."  Therefore  one  judge  entirely  agreed  with  I\Ir.  Justice 
WiLLES,  and  the  other  was  inclined  to  agree  with  him.  Under  these 
circumstances  we  must  consider  it  established  that  the  property  in 
the  mare  remained  in  the  plaintiff  Drake.  That  being  so,  he  had  a 
right  to  obtain  possession  of  his  property  either  by  taking  it  peaceably 
or  by  means  of  proper  legal  process.  As  I  understand  the  pro\nsions 
of  sect.  78  of  the  Common  Law  Procedure  Act,  1854,  the  plaintiff 
(assuming  that  there  had  been  no  liquidation  petition),  if  the  value 
of  the  mare  had  not  been  paid  to  him  under  the  judgment,  and  if  he 
could  have  found  out  where  the  mare  was,  might  have  applied  to  a 
judge  at  chambers  for  an  order  that  the  defendant  should  deliver 
her  to  him.  The  liquidation  petition  prevented  him  from  doing  that, 
but  the  power  of  the  judge  at  chambers  became  then  vested  in  the 
Com't  of  Banki"uptcy,  which  could  do  complete  justice  in  the  matter. 
The  plaintiff  Drake,  therefore,  if  he  had  applied  to  the  Court  of 
Bankruptcy,  might  have  obtained  an  order  for  the  delivery  of  the 
mare  to  him.  But  it  is  said  that  he  cannot  do  this  now,  because  he 
is  bound  by  the  proof  which  he  made  in  the  liquidation.  If  that 
means  anything  it  means  this,  that  the  plaintiff  has  deliberately 
elected  to  take  his  chance  of  a  dividend  in  the  liquidation  in  substi- 
tution for  his  right  to  recover  possession  of  his  mare.  It  would  be 
very  extraordinary  if  he  had  done  this,  but  of  course  it  is  possible 
that  he  may  have  done  it,  and  we  must  examine  what  he  actually 
did  in  order  to  see  whether  he  has  realty  made  this  election.  He  has 
done  nothing  beyond  bringing  in  a  proof.  The  proof  has  not  been 
formally  admitted  by  the  trustee,  though,  on  the  other  hand,  it  has 
not  been  rejected.  But,  before  a  reasonable  time  had  elapsed  after 
the  proof  was  taken  in,  the  plaintiff  made  a  claim  to  be  paid  in  full 
the  whole  amount  of  his  judgment,  that  is,  he  made  a  claim  for  the 
full  value  of  the  chattel.  This  was  a  proceeding  wholly  inconsistent 
with  the  notion  that  he  had  finally  elected  to  take  the  dividend  in- 
stead of  the  mare,  and  I  am  of  opinion  that  he  had  made  no  such 
election.  The  result  is  that  the  order  of  the  registrar  must  be  dis- 
charged, and  we  must  now  make  the  order  which  he  ought  to  have 
made,  that  is,  that  the  mare  be  delivered  to  or  retained  by  the  ap- 
pellant. But,  inasmuch  as  his  proceedings  in  directing  the  sheriff  to 
seize  the  mare  were  not  such  as  can  be  viewed  with  approbation  by 
the  court,  the  proper  order  as  to  costs  will  be  that  there  be  no  costs  on 
either  side,  either  of  the  hearing  before  the  registrar  or  of  the  appeal 


'96  HEPBURN    V.    SEWELL.  [cHAP.  VI. 

James,  L.J.:  — 

I  am  of  the  same  opinion.  I  think  it  is  not  the  business  of  any 
com't  of  justice  to  find  faciHties  for  enabhng  one  man  to  steal  an- 
other man's  property.  That  is  really  what  we  are  asked  to  do  by  the 
respondent.  The  appellant  desired  to  get  his  mare  back.  He  brought 
his  action  of  detinue,  and  he  obtained  a  judgment,  the  effect  of  which 
was  that  the  defendant  was  to  pay  the  value  of  the  mare  or  give  her 
up.  The  trustee  seems  to  think  that  because  the  defendant  has  be- 
come bankrupt,  he  can  keep  the  value  and  not  give  up  the  animal. 
It  is  impossible  to  hold  that  that  can  be  right,  and  I  am  very  glad 
to  find  that  we  have  the  authority  of  the  Courts  of  Common  Pleas 
and  Exchequer  Chamber  for  saving  that  such  is  not  the  state  of  the 
law  of  England.  I  agree  also  wdth  the  Master  of  the  Rolls  that  in  the 
present  case  there  has  been  no  election  by  the  appellant  to  take  a 
dividend  in  lieu  of  his  judgment.  A  man  does  not  elect  himself  out 
of  his  property  in  this  sort  of  way.  I  agi'ee  also  that  the  sheriff 
ought  not  to  have  been  put  in  motion  to  take  the  mare  away  from 
the  trustee,  who,  rightly  or  wrongl}',  had  got  possession  of  her.  But 
for  this  improper  act  the  appellant  will  be  sufficiently  punished  by 
'osing  all  his  costs. 

Baggallay,  L.J.,  concurred. 

Note.  —  See  Goff  v.  Craven,  34  Hun.  (N.Y.)  150.  The  plaintiff 
recovered  judgment  for  the  full  value  of  the  chattel,  execution  was 
issued,  and  the  defendant  was  arrested  and  imprisoned  for  thirty 
days.  The  judgment  remained  unsatisfied,  and  the  court  held  that 
the  plaintiff  continued  to  be  the  owner  of  the  chattel. 


HEPBURN   V.   SEWELL. 

SHarr.  &  J.  (Md.)  211.     1821. 

Dorset,  J.,  delivered  the  opinion  of  the  court. 

The  appellant  in  this  cause,  as  administrator  of  Jane  Fishwick, 
instituted  an  action  of  trover  in  Prince  George's  County  Court,  to 
September  term  1812,  against  the  appellee,  to  recover  the  value  of 
certain  negroes,  among  whom  were  Sail,  Patt,  and  Phillis,  the  prop- 
erty of  the  appellant's  intestate,  and  obtained  a  verdict  for  the  sum 
of  S7158.50,  on  which  judgment  was  rendered.  The  appellee  appealed 
from  that  judgment  to  the  Court  of  Appeals,  and  the  same  was  af- 
firmed at  June  term  1818,  and  the  amount  of  the  judgment,  vnih 
costs,  was  paid  by  the  appellant  to  the  appellee,  before  the  trial, 
but  after  the  issue  was  joined  in  the  present  suit.  After  the  com- 
mencement of  the  action  of  trover,  in  which  the  verdict  was  rendered, 
the  slaves  Sail,  Patt,  and  Phillis,  each  had  a  child,  and  the  present 
action  of  trover  was  instituted  by  the  appellant  to  recover  the  valuf 


CHAP.  VI.]  HEPBURN    V.    SEWELL.  197 

of  the  said  children.  The  court  below  decided  that  the  action  could 
not  be  maintained,  and  this  court  concur  in  that  decision.  The 
British  authorities  lay  dowTi  the  general  proposition,  that  if  the 
plaintiff  in  an  action  of  trover  has  recovered  damages  for  the  con- 
version of  the  goods,  the  property  thereof  vests  in  the  defendant, 
who,  as  damages  to  the  value  have  been  recovered  against  him,  is 
to  be  considered  as  a  purchaser.  Adams  v.  Broughton,  2  Strange, 
1078.  6  Bacon's  Abridgment,  title  "Trover,"  letter  A,  page  679. 
This  court  are  of  an  opinion,  that  the  judgment  per  se  doth  not 
clothe  the  defendant  with  the  legal  character  of  a  purchaser,  but 
that  the  judgment,  and  its  fruit,  to  wit,  the  payment  of  the  amount 
thereof,  must  both  concur,  to  vest  the  right  of  property  in  the  de- 
fendant. But  the  question  occurs,  to  what  epoch  shall  the  title  of 
the  defendant  relate  on  his  satisfjdng  the  amount  of  the  judgment? 
and  we  think  his  title  relates  back  to  the  time  of  conversion.  If  the 
thing  converted  should,  from  any  cause  whether  natural  or  artificial, 
be  destroyed  during  the  interval  intervening  between  the  period  of 
convei-sion  and  the  payment  of  the  judgment,  the  loss  must  be  sus- 
tained by  the  defendant;  and  it  would  seem  to  follow,  that  if  the 
thing  should  improve  in  value  during  that  period,  the  benefit  ought 
to  enure  to  the  defendant,  on  the  principle  qui  sentit  onus,  sentire 
debet  et  commodum.  It  must  be  borne  in  mind  that  the  plaintiff  in  an 
action  of  trover  compels  the  defendant  to  become  a  purchaser  against 
his  will ;  and  from  what  period  does  he  elect  to  consider  the  defend- 
ant as  a  purchaser  or  as  answerable  to  him  for  the  value  of  the  thing 
converted?  He  selects  the  date  of  conversion  as  the  epoch  of  the 
defendant's  responsibility,  and  claims  from  him  the  value  of  the 
property  at  that  period,  with  interest  to  the  time  of  taking  the  ver- 
dict. The  inchoate  right  of  the  defendant,  as  a  purchaser,  must 
therefore  be  considered  as  coeval  with  the  period  of  convei-sion, 
and  this  right  being  consummated  by  the  judgment  and  its  dis- 
charge, must,  on  legal  and  equitable  principles,  relate  back  to  its 
commencement.  The  generality  of  our  ex]3ressions  must  not  be  mis- 
understood ;  we  do  not  mean  to  decide  that  in  all  cases  of  trover  the 
payment  of  the  damages  assessed  vests  the  right  of  property  in  the 
defendant.  Thus,  if  property  converted  is  returned  and  received  by 
the  o\\Tier  before  the  institution  of  an  action  of  trover,  as  damages 
could  only  be  given  for  a  partial  conversion,  the  payment  thereof 
would  not  divest  the  right  of  property  out  of  the  plaintiff,  and  vesi 
it  in  the  defendant. 

Judgment  affirmed. 

Note.  —  See,  accord,  Oriel  Bros.  v.  Pollak,  105  Ala.  249;  Smith  v. 
S?nith,  51  N.H.  571;  Acheson  v.  Miller,  2  Ohio  St.  203,  20G.  But  cf. 
Atwater  v.  Tupper,  45  Conn.  144,  147;  Third  National  Bank  v.  Rice, 
161  Fed.  822. 


198  COCHRANE    V.    MOORE.  [CHAP.  VII. 


CHAPTER  VII. 
GIFTS  INTER  VIVOS. 


COCHRANE   V.    MOORE. 

L.  R.  25  Q.  B.  D.  57.     1890. 

Fry,  L.J.  The  law  enunciated  by  Bracton  in  his  book  "de  ac- 
quirendo  rerum  dominio,"  seems  clear  to  the  effect  that  no  gift  was 
complete  without  tradition  of  the  subject  of  the  gift.  "  Item  oportet," 
he  says  (vol.  i,  p.  128),  ''quod  donationem  sequatur  rei  traditio, 
etiam  in  vita  donatoris  et  donatorii;  alioquin  dicetur  talis  donatio 
potius  nuda  promissio  quam  donatio,  et  ex  nuda  promiissone  non 
nascitur  actio,  non  magis  quam  ex  nudo  pacto,  non  enim  valet  dona- 
tio imperfecta,  nee  chartae  confectio,  nee  homagii  captio  cum  omni 
solemnitate  adhibita,  nisi  subsequuta  fuerit  seysina  et  traditio  in 
vita  donatoris."  And  again  (p.  300):  "Item  non  sufficit  chartam 
esse  factam  &  signatam  nisi  probetur  donationem  esse  perfectam,  & 
quod  omnia,  quae  donationem  faciunt,  rite  prsecesserunt,  &  subse- 
quutam  esse  traditionem,  alioqui  nunquam  transferri  potest  res 
donata  ad  donatorium.  Poterit  enim  homagium  prsecessisse,  & 
quod  charta  rite  facta  sit,  &  vera  &  bona  &  cum  solemnitate  recitata 
&  audita,  tamen  nunquam  valebit  donatio  nisi  tunc  demum  cum 
fuerit  traditio  subsequuta,  &  sic  poterit  charta  esse  vera,  sed  sine 
facta  seysina,  nuda."  And  to  the  same  effect  is  another  passage  in 
chapter  xviii,  p.  310. 

In  Bracton's  day,  seisin  was  a  most  important  element  of  the  law 
of  property  in  general;  and,  however  strange  it  may  sound  to  jurists 
of  our  day  and  country,  the  law;^'ers  of  that  day  applied  the  term  as 
freely  to  a  pig's  ham  (Select  Pleas  in  Manorial  Courts,  p.  142;  see 
also  Professor  Maitland's  papers  on  the  Seizin  of  Chattels,  the  Beati- 
tude of  Seizin,  and  the  Mystery  of  Seizin:  Law  Quarterly  Rev.,  i, 
324;  ii,  484;  iv,  24,  286)  as  to  a  manor  or  a  field.  At  that  time  the 
distinction  between  real  and  personal  property  had  not  yet  gro\^'n 
up:  the  distinction  then  recognised  was  between  things  corporeal, 
and  things  incorporeal :  no  action  could  then  be  maintained  on  a  con- 
tract for  the  sale  of  goods,  even  for  valuable  consideration,  unless 
under  seal:  the  distinction  so  familiar  to  us  now  between  contracts 
and  gifts  had  not  fully  developed  itself.  The  law  recognised  seisin 
as  the  common  incident  of  all  property  in  corporeal  things,  and 
tradition  or  the  delivery  of  that  seisin  from  one  man  to  another  as 


CHAP.  VII.]  COCHRANE    V.    MOORE.  199 

essential  to  the  transfer  of  the  property  in  that  thing,  whether  it  were 
land  or  a  horse,  and  whether  by  way  of  sale  or  of  gift,  and  whether 
by  word  of  mouth  or  by  deed  under  seal.  This  necessity  for  delivery 
of  seisin  has  disappeared  from  a  large  part  of  the  transactions  known 
to  our  law;  but  it  has  survived  in  the  case  of  feoffments.  Has  it  also 
survived  in  the  case  of  gifts? 

It  has  been  suggested  that  Bracton,  whilst  purporting  to  enun- 
ciate the  law  of  England,  is  really  copying  the  law  of  Rome.  But  by 
the  law  of  Rome,  at  least  since  the  time  of  Justinian,  gift  had  been 
a  purely  consensual  transaction,  and  did  not  require  delivery  to 
make  it  perfect.    (Inst,  ii,  vii.) 

Coming  next  to  the  great  law-writers  of  the  reign  of  Edward  I, 
they  hold  language  substantially  the  same  as  that  of  Bracton,  except 
indeed  that  the  difference  between  transactions  purely  voluntary, 
or  for  pecuniary  consideration,  appeal's  to  be  growing  somewhat 
more  important.  "Donatio,"  saj'B  Fleta,  "est  quaedam  institutio, 
quse  ex  mera  hberalitate,  nullo  jure  cogente,  procedit,  ut  rem  a  vero 
ejus  possessore  ad  alium  transferatur.  Dare  autem  est  rem  acci- 
pientis  facere  cum  effectu,  alioquin  inutilis  erit  donatio,  cum  ir- 
ritari  valeat  et  revocari."  (Lib.  iii,  c.  3.)  He  then  proceeds  to  dis- 
cuss various  kinds  of  gifts,  and  says:  "Alia  perfecta,  et  alia  incepta 
et  non  perfecta:  ut  si  donatio  lecta  fuerit  et  concessa,  et  homagium 
captum,  ac  traditio  nondum  fuerit  subsecuta."  (Loc.  cit.;  see  also 
Lib.  iii,  c.  15.) 

In  Lib.  iii,  c.  7,  he  discusses  the  necessary  elements  of  donations, 
and,  amongst  other  things,  the  effect  of  diu-ess  on  a  gift;  and  here  the 
necessity  of  delivery  is  again  clearly  shewn,  because,  according  to 
Fleta,  a  promise  made  without  duress  followed  by  delivery  under 
duress  is  not  a  valid  gift.  "Refert  tamen,"  he  says,  "utrmn  metus 
praeveniat  donationem  vel  subsequatur,  quia  si  primo  coactus,  et 
per  metum  compulsus  promisero,  et  postea  gratis  tradidero,  talis 
metus  non  excusat;  sed  si  gratis  promisero  et  compulsus  tradidero 
tunc  excusat  metus." 

Britton  held  substantially  the  same  language.  In  citing  him  we 
shall  prefer  the  translation  of  Mr.  Nichols  to  the  Norman-French  of 
the  original.  In  his  chapter  on  Gifts  (Lib.  ii,  c.  3),  he  gives  a  very 
clear  description  of  the  nature  of  a  gift.  "A  gift,"  he  says,  "  is  an 
act  whereby  anything  is  voluntarily  transferred  from  the  true  pos- 
sessor to  another  person,  with  the  full  intention  that  the  thing  shall 
not  return  to  the  donor,  and  with  full  intention  on  the  part  of  the 
receiver  to  retain  the  thing  entirely  as  his  own  without  restoring  it 
to  the  giver.  For  the  gift  cannot  be  properly  made,  if  the  thing  given 
does  not  so  belong  to  the  receiver,  that  the  two  rights,  of  property 
and  of  possession,  are  united  in  his  person,  so  that  the  gift  cannot  be 
revoked  by  the  donor,  or  made  void  by  another,  in  whom  the  lawful 
property  is  vested"  (pp.  220,  221). 


200  COCHRANE    V.    MOORE.  [cHAP.  VII. 

And  again  (Lib.  ii,  c.  3):  "Some  gifts  are  complete,  where  both 
rights  miite  in  the  purchaser;  others  are  begun,  but  not  completed; 
and  such  titles  are  bad,  as  in  case  of  gifts  granted,  whereof  no  livery 
of  seisin  follows"  (pp.  225-226). 

Passages  of  similar  import  will  be  found  in  Lib.  i,  c.  29,  and  Lib. 
ii,  c.  8. 

The  third  writer  of  the  age  of  Edward  I  is  one  of  a  very  different 
character  from  Fleta  and  Britton  —  we  mean  Horn,  the  author  of 
the  ]\Iirror  of  Justices;  he  attacked  the  judges  and  the  administra- 
tion of  the  law  in  his  days  with  a  vehemence  which  it  is  to  be  hoped 
was  undeserved.  But  though  amongst  the  155  abusions  or  abuses  of 
the  law  which  stirred  his  soul  to  wrath,  some  relate  to  seisin,  yet  he 
has  nothing  to  say  at  variance  with  his  contemporaries  on  the  neces- 
sity of  delivery;  but,  on  the  contrary,  expressly  affirms  that  "the 
law  reciuires  but  three  things  in  contracts:  1.  The  agreement  of  the 
wills;  2.  Satisfaction  of  the  donor;  3.  Delivery  of  the  possession  and 
gift"  (chap.  V,  sect.  1,  para.  75). 

In  the  reign  of  Edward  IV  a  step  seems  to  have  been  taken  in  the 
law  relative  to  gifts  which  resulted  in  this  modification:  that  whereas 
under  the  old  law  a  gift  of  chattels  by  deed  was  not  good  ■s\'ithout  the 
delivery  of  the  chattel  given,  it  was  now  held  that  the  gift  by  deed 
was  good  and  operative  until  dissented  from  by  the  donee. 

Thus  in  Michaelmas  Term,  7  Edw.  4,  pi.  21,  fol.  20,  it  was  held  by 
Choke  and  other  justices  that  if  a  man  executes  a  deed  of  gift  of  his 
goods  to  me  that  this  is  good  and  effectual  without  livery  made  to 
me,  until  I  disagree  to  the  gift,  and  this  ought  to  be  in  a  court  of 
record. 

In  Hilary  Term,  7  Edw.  4,  pi.  14,  fol.  29,  it  was  alleged  by  counsel 
(Catesby  and  Pigot),  that  if  a  man  give  to  me  all  his  goods  by  a  deed, 
although  the  deed  was  not  delivered  to  the  donee,  nevertheless  the 
gift  is  good,  and  if  he  chooses  to  take  the  goods  he  can  justify  this  by 
the  gift,  although  notice  has  not  been  given  to  him  of  the  gift;  and 
further,  that  if  the  donee  commit  felony  before  notice,  etc.,  still  the 
king  will  have  the  goods,  and  although  notice  may  be  material, 
nevertheless  when  he  has  notice,  this  would  have  relation  to  the 
time  of  the  gift,  etc.  But  the  court  said  that  such  a  gift  is  not  good 
-vxathout  notice,  for  a  man  cannot  give  his  goods  to  me  against  my  will. 

An  earlier  case  in  the  same  reign  has  been  cited  as  bearing  on  the 
present  question.  In  Michaelmas  Term,  2  Edw.  4,  pi.  26,  fol.  25, 
a  case  arose  on  trespass  of  goods,  in  which  Laicon  was  counsel  for  the 
defendant,  and  the  court  was  engaged  in  considering  the  sufficiency 
of  his  pleas.  In  the  course  of  the  discussion  Laicon  put  this  ques- 
tion, "Suppose  I  give  to  you  my  goods,  which  are  at  Everwdke,  and 
before  that  you  are  seized  of  them,  a  stranger  takes  them  away, 
have  you  not  a  writ  of  trespass  against  the  stranger?"  Which  he 
then  proceeds  to  answer.  "  Yes,  Sir,  for  by  the  gift  at  once  the  prop- 


CHAP.  VII.]  COCHRANE    V.    MOORE.  201 

erty  was  in  you  and  the  possession  by  the  -svTit  is  adjudged  in  you 
presently."  Danby,  the  Chief  Justice  of  the  Common  Pleas,  seem' 
to  have  assented,  apparently  on  the  ground  that  pleading  to  such  i 
writ  by  way  of  justification  would  confess  the  possession  of  the  plain- 
tiff and  the  taking  by  the  defendant  (car  la  si  vous  pled.  vr.  matter 
accord,,  et  justif,  et  vous  confess,  prisel  hors  de  son  poss.).  But  im- 
mediately after  this  discussion  Laicon  found  his  argument  so  hope- 
less (videns  opinionem  curiae  contra  eum)  that  he  seems  to  have 
amended  his  pleadings. 

This  case  seems  to  us  of  no  authority  on  the  point  under  inves- 
tigation. What  was  said  was  not  in  discussion  of  what  really  passed 
by  the  gift,  but  only  of  the  effect  of  pleadmg  in  preventing  the  denial 
of  the  plaintiff's  possession.  The  question  seems  to  relate  to  an  ef- 
fectual gift  of  goods  without  possession,  but  there  is  nothing  to  shew 
whether  the  parties  to  the  discussion  had  in  contemplation  a  gift  by 
deed  or  not.  The  cases  already  referred  to  which  occm-red  a  few 
years  later  seem  to  shew  that  the  effect  of  a  deed  in  passing  the  prop- 
erty without  deliverj^  of  the  chattel  was  claiming  the  attention  of 
the  lawyers  of  that  day. 

Brooke,  in  his  Abridgment  (Trespass,  303),  cites  this  case  of  the 
2  Edw.  4,  and  seems  to  put  it  upon  a  somewhat  different  ground  to 
the  Year  Book  itself.  He  says  that  Danby  agreed  in  Laicon's  argu- 
ment, "for  by  the  gift  the  property  is  in  him,  and  then  the  law  ad- 
judges possession,  which  was  not  denied,  and  it  seems  to  be  the  law, 
because  goods  are  transitory  whilst  land  is  local."  We  can  find  no 
authority  for  these  reasons  in  the  entry  which  he  professes  to  be 
abstracting. 

This  case,  as  explained  by  Brooke,  seems  to  underlie  the  propo- 
sition asserted  twice  in  the  case  of  Hudson  v.  Hudson,  Latch.  214, 
263,  discussed  in  2  Wms.  Saunders,  47,  a,  to  illustrate  the  right  of 
an  executor  to  sue  in  trover  before  actual  possession.  If,  it  was  said, 
a  man  in  London  gives  to  me  his  goods  in  York  and  another  take 
them  I  can  bring  trespass;  for  property,  it  was  added,  draws  pos- 
session in  chattels  personal.  The  court  were  not  considering  what 
gift  of  chattels  did  carry  the  property,  but  only  illustrating  the 
proposition  that  where  the  property  has  passed,  as  by  the  will  to  the 
executor,  there  the  law  attracts  to  it  possession.  This  would  be  per- 
fectly illustrated  by  the  case  of  chattels  in  York  transferred  by  deed 
executed  in  London.  The  whole  supposition  that  this  case  lends  any 
countenance  to  the  notion  that  chattels  can  pass  without  delivery 
seems  to  be  derived  from  the  silence  of  the  case  as  to  the  way  in 
which  the  gift  was  made :  and  this  point  was  not  material  to  the 
matter  under  consideration  by  the  court.  Moreover,  where  a  legal 
result  could  only  be  produced  by  a  deed,  our  eld(>r  law-writei-s  were, 
we  believe,  less  apt  to  mention  the  deed  than  their  less  technical 
descendants. 


202  COCHRANE    V.    MOORE.  [CHAP.  VII. 

One  other  case  in  the  reign  of  Edward  IV  must  be  mentioned. 
In  Michaelmas  Term,  21  Edw.  4,  pi.  27,  fol.  55,  it  was  said  by  Brian, 
J.,  that  in  detinue  of  chattels  it  was  a  good  plea  to  say  that  the  plain- 
tiff after  the  bailment  gave  them  to  the  defendant  and  then  he  could 
have  his  law  —  quod  fuit  concessum.  The  case  appears  to  go  only 
to  this,  that  if  A  after  bailing  a  chattel  to  B,  then  gives  it  to  B,  B 
might  defend  himself  by  his  suit  in  an  action  of  detinue.  If  good  law, 
it  seems  to  establish  that  delivery  first  and  gift  afterwards  is  as 
effectual  as  a  gift  first  and  delivery  afterwards. 

One  case  in  the  reign  of  Henry  VII  perhaps  requires  considera- 
tion (Hilary  Term,  21  Hen.  7,  pi.  30,  fol.  18) .  The  question  seems 
to  have  been  whether  the  use  of  land  was  presently  transferred  by 
a  bargain  and  sale,  and  in  the  course  of  the  report  the  following  pas- 
sage occurs:  "If  I  give  to  a  man  my  cow  or  my  horse,  he  may  take 
the  one  or  the  other  at  his  election :  and  the  cause  is  that  immediately 
by  the  gift  the  property  is  in  him,  and  that  of  the  one  or  the  other  at 
his  will;  but  if  the  case  were  that  I  will  give  to  him  a  horse  or  a  cow 
in  future  time,  then  he  cannot  take  either  the  one  or  the  other,  for 
then  it  is  in  my  election  to  choose  which  of  them  I  wnll  give  him." 
The  case  is  interesting  as  the  first  one  which  we  have  found  which 
emphasizes  the  distinction  in  gifts  between  words  in  the  present  and 
in  the  future  tense.  But  the  passage  we  have  cited  appears  to  have 
no  real  weight  of  authority.  It  is  only  part  of  the  argument  of  the 
Attorney-General,  and  the  argument  does  not  appear  tenable;  for 
surely  it  is  open  to  question  whether  the  gift,  even  a  grant  for  valua- 
ble consideration,  of  one  or  other  of  two  things  at  the  election  of  the 
donee  or  grantee,  can  pass  the  property  in  one  or  other  or  both  of 
these  things  immediately  and  before  the  election  of  the  grantee.  It 
is  further  to  be  observed  that  the  question  before  the  court  turned 
on  the  doctrine  of  election;  and  whether  the  supposed  gift  was  to  be 
by  deed  or  not  is  a  point  on  which  the  report  is  silent.  This  silence 
is  the  only  reason  why  the  passage  has  been  thought  by  some  per- 
sons relevant  to  the  present  inquiry. 

It  was  in  the  reigns  of  the  early  Tudors  that  the  action  on  the  case 
on  indebitatus  assumpsit  obtained  a  firm  foothold  in  our  law;  and  the 
effect  of  it  seems  to  have  been  to  give  a  greatly  increased  importance 
to  merely  consensual  contracts.  It  was  probably  a  natural  result  of 
this  that,  in  time,  the  question  whether  and  when  property  passed 
by  the  contract  came  to  depend,  in  cases  in  which  there  was  a  value 
consideration,  upon  the  mind  and  consent  of  the  parties,  and  that  it 
was  thus  gradually  established  that  in  the  case  of  bargain  and  sale 
of  personal  chattels,  the  property  passed  according  to  that  mind  and 
intention,  and  a  new  exception  was  thus  made  to  the  necessity  of 
delivery. 

This  doctrine  that  property  may  pass  by  contract  before  delivery 
appears  to  be  comparatively  modern.  It  may,  as  has  been  suggested, 


CHAP.  VII.]  COCHRANE    V.    MOORE.  203 

owe  its  origin  to  a  doctrine  of  the  civil  law  that  the  property  was  at 
the  risk  of  the  purchaser  before  it  passed  from  the  vendor;  but  at  any 
rate  the  point  was  thought  open  to  argument  as  late  as  Elizabeth's 
reign  (see  Plowd.  lib,  and  see  a  learned  note,  2  Man.  &  Ry.  566). 

Flower's  Case,  Noy  67,  which  seems  to  have  been  decided  in  39 
Elizabeth  (see  p.  59),  appears  to  shew  that  the  necessitj'  of  delivery 
was  then  upheld  by  the  court.  The  case  is  thus  stated  by  Noy  (p. 
67) :  "A  borrowed  one  hundred  poimd  of  B,  and  at  the  day  brought 
it  in  a  bagg  and  cast  it  upon  the  table  before  B  and  B  said  to. A, 
being  his  nephew,  I  will  not  have  it,  take  it  you  and  carry  it  home 
again  with  you.  And  by  the  court,  that  is  a  good  gift  by  paroll, 
being  cast  upon  the  table.  For  then  it  was  in  the  possession  of  B, 
and  A  might  well  wage  his  law.  By  the  court,  otherwise  it  had  been, 
if  A  had  only  offer'd  it  to  B,  for  then  it  was  chose  ui  action  only,  and 
could  not  be  given  without  a  writing." 

The  court  seems  to  have  held  that  delivery  was  necessary,  but 
that  by  the  casting  of  the  money  on  the  table  it  came  into  the  pos- 
session of  the  uncle,  and  that  the  nephew  taking  the  money  in  his 
uncle's  presence  and  by  his  direction,  there  was  an  actual  delivery 
by  the  uncle  to  the  nephew  —  so  that  the  nephew  might  wage  his 
law,  i.e.,  might  conscientiously  swear  that  he  was  not  indebted  to 
his  uncle.  (See  the  case  discussed  in  Douglas  v.  Douglas,  22  L.  T. 
(N.S.)  127.) 

In  Jenkins's  Centuries  (3d  Century,  Case  ix),  it  is  said:  ''A  gift 
of  anything  without  a  consideration  is  good :  but  it  is  revocable  be- 
fore the  delivery  to  the  donee  of  the  thing  given.  Donatio  perficitur 
possessione  accipientis.  This  is  one  of  the  rules  of  law":  —  a  state- 
ment made  with  little  reference  to  the  other  matters  treated  of  in  the 
case.  We  know  of  no  other  authority  exactly  to  the  same  effect  as 
this,  nor  is  it  stated  as  having  the  authority  of  any  judicial  decision. 

Blackstone's  discussion  of  the  subject  of  gifts  of  chattels  is  perhaps 
not  so  precise  as  might  be  desired;  but  his  language  does  not  seem 
to  us  essentially  to  differ  from  the  earlier  authorities:  ''A  true  and 
proper  gift  or  gi-ant  is,"  he  says,  "always  accompanied  wath  delivery 
of  possession  and  takes  effect  immediately."  "But  if  the  gift  does 
not  take  effect  by  delivery  of  immediate  possession,  it  is  then  not 
properly  a  gift,  but  a  contract:  and  this  a  man  cannot  be  compelled 
to  perform"  (Book  2,  c.  30). 

In  1818,  the  year  before  Irons  v.  Smallpiece,  2  B.  &  A.  551  was 
decided,  the  then  Master  of  the  Rolls,  Sir  Thomas  Plumer,  in  Hooper 
V.  Goodwin,  1  Sw.  485,  491,  said:  "A  gift  at  law  or  in  equity  sup- 
poses some  act  to  pass  the  property :  in  donations  inter  vivos  ...  if 
the  subject  is  capable  of  delivery,  delivery." 

These  are,  so  far  as  we  can  find,  all  the  relevant  authorities  before 
the  decision  in  Irons  v.  Smallpiece,  though  they  are  not  all  the  au- 
thorities that  have  been  cited  as  relevant.    But  several  that  have 


204  TENBROOK    V.    BROWN.  [cHAP.  VII. 

been  relied  upon  appear  to  us  to  have  no  real  bearing  on  the  point  at 
issue.  Thus  in  Wortes  v.  Clifton,  Roll.  61;  Mich.  12  James  1,  Coke 
arguendo  uses  as  an  illustration  of  the  difference  between  the  civil 
aw  and  oure  —  that  in  the  civil  law  a  gift  is  not  good  without  tradi- 
tion —  but  that  it  is  otherwise  in  our  law.  Here  for  aught  that  ap- 
pears, the  gift  which  the  learned  counsel  referred  to  as  good  without 
delivery  is  a  gift  by  deed. 

In  like  manner  several  authorities  which  affirm  that  a  gift  of 
chattels  may  be  good  without  deed  and  are  silent  as  to  delivery 
(Perkins'  Profitable  Book,  Grant,  57;  2  Shep.  Touchs.  227;  Comyn 
Digt.  Biens  D  2)  have  been  cited  as  if  they  likewise  asserted  that  a 
gift  was  good  without  delivery  —  a  proposition  which  they  do  not 
affirm,  or,  as  we  think,  imply. 

This  review  of  the  authorities  leads  us  to  conclude  that  according 
to  the  old  law  no  gift  or  grant  of  a  chattel  was  effectual  to  pass  it 
whether  by  parol  or  by  deed,  and  whether  with  or  without  considera- 
tion unless  accompanied  by  delivery:  that  on  that  law  two  excep- 
tions have  been  grafted,  one  in  the  case  of  deeds,  and  the  other  in 
thiit  of  contracts  of  sale  where  the  intention  of  the  parties  is  that  the 
property  shall  pass  before  delivery. 


TENBROOK  v.   BROWN. 

17  Ind.  410.     1861. 

Appeal  from  the  Parke  Common  Pleas. 

WoRDEN,  J.  Suit  by  Tenbrook  against  BrowTi.  Judgment  for 
the  plaintiff,  who  appeals  in  conseciuence  of  the  smallness  of  the  ver- 
dict and  judgment. 

Tenbrook  was  one  of  the  heirs  and  distributees,  through  his 
mother,  of  Samuel  Brown,  deceased,  and  the  defendant,  BrowTi, 
was  a  son  of  the  deceased,  and  his  executor.  The  complaint  sought 
distribution  to  the  plaintiff  of  his  share  of  the  estate.  The  contro- 
versy^ in  the  case  grew,  mainly,  out  of  the  fact  that  the  defendant 
claimed  the  most  of  the  personal  property,  supposed  to  have  been 
left  by  the  deceased,  as  having  been  given  to  him  by  the  deceased 
in  his  lifetime. 

We  will  notice  the  points  relied  upon  in  the  brief  of  counsel  for  a 
reversal. 

At  the  proper  time,  the  plaintiff  asked  the  following  instructions 
to  the  jury,  viz.:  — 

"4.  That  if  the  jury  believe  from  the  evidence  that  the  property 
claimed  as  a  gift  by  the  defendant,  was  in  the  possession  of  the  de- 
fendant as  agent  or  manager  for  defendant's  father,  before  the  time 


CHAP.  VII.]  TENBROOK    V.    BROWN.  205 

the  gift  is  claimed  to  have  been  made,  and  no  apparent  change  ol 
ownership  or  control  had  taken  place  after  that  time,  there  is  no 
valid  gift."  This  charge  was  refused  as  asked,  but  given,  striking 
out  the  words,  ''there  is  no  valid  gift,"  and  adding,  "it  is  evidence 
tending  to  prove  that  there  had  been  no  gift." 

We  are  of  opinion  that  the  fourth  charge,  as  asked,  was  properly 
refused ;  and  that  as  given,  it  was  as  favorable  to  the  plaintiff  as  he 
could  legall}^  claim. 

There  can  be  no  doubt  that  delivery  is  necessary  to  pass  the  title 
to  a  chattel  by  gift.  Chancellor  Kent  says  on  this  subject,  "  Delivery 
in  this,  as  in  every  other  case,  must  be  according  to  the  nature  of  the 
thing.  It  must  be  an  actual  delivery,  so  far  as  the  subject  is  capable 
of  delivery.  It  must  be  secundam  suhjectum  maieriam,  and  be  the 
true  and  effectual  way  of  obtaining  the  command  and  dominion  of 
the  subject.  If  the  thing  be  not  capable  of  actual  delivery,  there 
must  be  some  act  equivalent  to  it.  The  donor  must  part,  not  only 
with  the  possession,  but  with  the  dominion  of  the  property."  2  Kent's 
Com.,  3d  Ed.,  p.  438. 

Now,  it  seems  clear  enough  that  if  the  property  in  question  was 
in  the  possession  of  the  defendant,  as  agent  or  manager  for  his  father, 
at  the  time  of  the  gift,  still,  his  father  might  execute  to  him  a  valid 
gift  of  the  property  while  thus  in  his  possession.  The  law  clearly 
would  not  require,  in  such  case,  that  the  defendant  should  first  sur- 
render his  actual  possession  to  his  father,  in  order  that  his  father 
might  redeliver  the  property  to  him  in  execution  of  the  gift.  It  would 
seem  that  in  such  case  the  gift  would  be  complete,  if  the  father  be- 
stowed the  property  upon  the  defendant  and  relinquished  all  do- 
minion and  control  over  it,  and  recognized  the  defendant's  posses- 
sion thereof  as  being  in  his  own  right;  and  if  the  defendant,  on  his 
part,  accepted  the  gift,  and  retained  possession  of  the  property  in 
virtue  thereof,  with  his  father's  consent.  Actual  delivery  could  not 
be  made,  without  first  going  through  the  useless  formality  of  sur- 
rendering up  possession,  because  possession  was  already  in  the  de- 
fendant. Such  acts  as  above  indicated  would  seem  to  be  equivalent 
to  a  delivery,  and  to  be  BufRcient  to  vest  the  property  in  the  donee. 

It  seems  to  us  that  all  this  might  have  been  done,  and  yet  that 
there  might  not  have  been,  in  the  language  of  the  charge  asked,  any 
^^  apparent  change  of  ownership  or  control,"  after  the  gift.  The 
charge  implies  that  there  must  have  been  such  a  change  of  owner- 
ship or  control  as  would  be  "  apparent "  to  the  world.  The  defendant, 
as  is  assumed  in  the  charge,  having  the  possession  of  the  property  at 
the  time  of  the  gift,  we  think  the  gift  might  be  valid,  although  there 
was  no  such  apparent  change  of  the  ownership  or  control  thereof. 
There  might  have  been  a  real  change  of  ownership,  and  of  the  capac- 
ity in  which  the  defendant  controlled  the  property,  which  appear- 
ances would  not  nQcessarily  indicate,  This  is  a  question  between  an 


206  McWILLIE    V.    VAN    VACTER.  [cHAP.  VU. 

heir  of  the  donor  and  the  donee.  If  the  rights  of  creditors  of  the 
donor  were  involved,  the  question  might  admit  of  a  different  solu- 
tion. 

Note.  —  See,  in  accord  with  the  principal  case  as  to  the  manner 
in  which  the  bailee  of  a  chattel  may  be  made  the  donee  thereof, 
Wing  V.  Merchant,  57  Me.  383;  MilUr  v.  Neff,  33  W.Va.  197,  207; 
Winter  v.  Winter,  4  L.  T.  (N.S.)  639;  In  re  Alderson,  64  L.  T.  (N.S.) 
645.  See  also  Allen  v.  C&wan,  23  N.Y.  502;  Kilpin  v.  Ratley,  [1892] 
1  Q.  B.  582. 


BICKFORD   V.   MATTOCKS. 

95  Me.  547.     1901. 

Savage,  J.  Delivery  may  be  made  to  the  donee;  or,  as  is  com- 
monly, but  somewhat  loosely  said,  it  may  be  made  to  a  third  person 
for  the  donee,  or  for  the  use  of  the  donee.  Borneman  v.  Sidlinger,  15 
Maine,  429;  Hill  v.  Stevenson,  63  Maine,  364;  Dole  v.  Lincoln,  supra. 

Not  everj'  deliverj^  to  a  third  person  is  a  deliver^'  for  the  donee, 
or  for  the  use  of  the  donee,  in  the  sense  in  which  these  phrases  are 
used  in  the  cases  cited.  There  may  be  a  delivery  to  a  third  person 
which  constitutes  him  the  agent  of  the  donor,  and  there  may  be  a 
deliver^'  which  constitutes  him  a  trustee  for  the  donee,  and  the  dis- 
tinction lies  in  the  intention  \\ath  which  the  delivery  is  made.  If  the 
donor  deliver  the  property  to  the  third  person  simply  for  the  purpose 
of  his  delivering  it  to  the  donee  as  the  agent  of  the  donor,  the  gift  is 
not  complete  until  the  property  has  actually  been  delivered  to  the 
donee.  Such  a  deliveiy  is  not  absolute,  for  the  ordinary  principle  of 
agency  applies,  by  which  the  donor  can  revoke  the  authority  of  the 
agent,  and  resume  possession  of  the  property,  at  any  time  before  the 
authority  is  executed.  On  the  other  hand,  if  the  donor  delivers  the 
property  to  the  third  person,  with  the  intent  that  the  gift  shall  take 
effect  immediately,  and  thus  parts  with  all  present  and  future  do- 
minion over  it,  the  third  person  holds  as  trustee  for  the  donee,  and 
the  gift  is  in  that  respect  complete. 


McWILLIE   V.   VANYACTER. 

35  Miss.  428.     1858. 

Smith,  C.J.,  delivered  the  following  opinion:  — 

The  adverse  title  set  up,  and  upon  which  the  assumption  is  based, 
that  the  property  in  question  was  not  assets  of  the  estate,  and 
therefore  not  subject  to  distribution,  arises  under  the  deed  of  gift 


CHAP.  VII.]  MCWILLIE    V.    VAN    VACTER.  207 

referred  to  in  the  defendant's  answer.  That  deed  purports  to  be 
founded  upon  the  love  and  affection,  which  the  donor  or  grantor 
bore  to  the  donee,  Mrs.  Sarah  J.  McWilUe,  her  daughter-in-law,  and 
the  further  consideration  of  one  dollar.  It  conveyed  certain  slaves, 
including  those  in  controversy,  to  Mrs.  Sarah  J.  Mc Willie,  for  life, 
with  remainder  to  a  trustee,  for  the  use  of  the  appellant,  Abram  A. 
McWillie,  and  reserving  to  the  grantor  dui-ing  her  life  the  possession 
and  control  of  the  property.  It  bears  date  on  the  2oth  of  April,  1842, 
and  was,  on  the  same  day,  acknowledged  before  a  justice  of  the 
peace,  whose  certificate  is  in  the  following  words:  "Personally  ap- 
peared before  me,  Daniel  Moore,  an  acting  Justice  of  the  Peace  in 
and  for  said  county,  Mrs.  Ann  McWillie,  widow,  trading  and  acting 
for  herself,  who,  in  my  presence,  signed,  sealed,  and  delivered  the 
foregoing  instrument  of  writing  as  her  own  act  and  deed,  and  for  the 
purposes  therein  specified."  The  grantor  died  on  the  5th  of  October, 
1844,  and  the  deed  was  filed  for  record  two  days  after  that  event. 
The  record  contains  no  further  proof  of  the  delivery  of  the  deed. 
Abram  A.  McWillie  lived  on  the  same  place  with  the  grantor,  when 
the  deed  was  executed,  and  when  she  died.  There  was  no  evidence, 
nor  an  attempt  at  proof,  that  the  slaves  specified  in  the  deed  were 
ever  delivered  to  any  person  interested  under  it.  On  the  contrarj^,  in 
accordance  with  the  reservation  in  the  deed,  the  evidence  tends 
strongly  to  show  that,  in  point  of  fact,  there  never  was  a  delivery  of 
the  property  embraced  therein. 

The  questions  arising  upon  these  facts  respect  the  validity,  due 
execution,  and  delivery,  of  the  instrument  under  which  the  adverse 
claim  of  Mrs.  Sarah  J.  McWillie  and  the  appellant  is  set  up.  We 
will  first  direct  our  attention  to  the  character  of  the  instrument  it- 
self, as  our  conclusions  upon  that  subject  may  dispense  with  any 
further  investigation. 

We  entertain  no  doubt  that  the  instnmaent  in  question  is  to  be 
regarded  as  a  voluntary  deed,  and  not  a  conveyance  of  property, 
based  upon  a  consideration  deemed  valuable  in  law.  It  is  what  the 
law  recognizes  as  a  deed  of  gift.  The  proposition  to  be  solved,  there- 
fore, is  whether  a  gift  or  a  donation  of  chattels  personal,  without 
delivery  of  possession  to  the  donee,  by  deed  of  gift  which  reserves 
possession  to  the  donor  for  life,  is  valid,  under  the  law  of  this  State? 

A  gift  of  a  chattel  personal  is  the  act  of  transferring  the  right  and 
possession  thereto;  whereby  one  man  renounces,  and  another  man 
acquires,  immediately,  all  right  and  title  thereto.  No  consideration 
is  necessary  to  support  it;  and  if  made  bona  fide,  and  there  is  an  im- 
mediate delivery  of  possession,  it  is  good  against  the  world.  But  if 
the  gift  does  not  take  effect  by  immediate  delivery  of  possession,  it 
is  then  not  a  gift,  but  a  contract.  The  subject  of  the  gift  must  be 
certain,  and  there  must  be  the  mutual  consent  and  concurrent  will 
of  both  parties.  Delivery  of  possession  to  the  donee  was  essential  to 


208  McWILLIE    V.    VAN    VACTER.  [cHAP.  VII. 

the  validity  of  a  gift  of  a  chattel  personal.  This  was,  unquestion- 
ably, the  rule  at  common  law,  in  regard  to  gifts  by  parol.  But  a 
distinction  has  been  taken,  in  some  of  the  English  cases,  between 
gifts  by  parol  and  by  deed;  and  it  has  been  hinted  or  assumed,  that 
a  gift  of  a  chattel  might  do,  without  delivery,  if  made  by  deed,  or  in 
WTiting.  FZoifer's  Cose,  Noye's  Rep.  67  (cited  by  Kent); '/rows  v. 
Smallpiece,  2  Barn.  &  Alder.  551.  This  rule,  as  a  principle  of  the 
common  law,  at  best,  rests  upon  slender  authority,  and  by  Chan- 
cellor Kent  is  denied  to  exist.  2  Kent's  Comm.  439.  However  this 
may  be,  no  doubt  can  be  entertained  as  to  the  doctrine  of  this  court 
en  the  subject  for  the  last  twenty  years;  as  no  distinction  has  ever 
been  recognized  between  the  gift  of  a  chattel  personal,  by  parol  or 
by  deed.  In  all  cases,  in  which  the  question  has  come  directly  be- 
fore the  court,  and  where  its  determination  was  necessary  to  a  dis- 
position of  the  case,  it  is  held,  that  delivery  of  possession  is  essen- 
tial to  the  validity  of  a  gift,  whether  attempted  to  be  made  by  parol, 
or  by  an  instrument  in  writing.  Marshall  v.  Fulgham,  4  How.  216: 
2  lb.  745  {Thompson  v.  Thompson);  Caradine  v.  Collins,  7  S.  &  M. 
428;  Newell  v.  Newell,  34  Miss.  R.  385;  Haley  v.  Brown  (not  re- 
ported). 

In  the  two  first  cases,  the  question  arose  upon  deeds  which  pur- 
ported to  convey  the  property  donated,  absolutely,  wathout  any 
condition  or  reservation  of  possession  to  the  donors.  In  the  third 
case,  the  words,  "under  mj'  ot\ti  proper  guardianship  and  protec- 
tion," were  inserted  after  the  habendum  in  the  deed  of  gift,  which, 
it  is  manifest,  was  equivalent  to  a  reservation  of  the  possession,  until 
the  donor  should  see  proper  to  perfect  the  gift,  by  a  deliver^'  of  the 
property  specified  in  the  deed.  The  charges  given  in  the  court  below, 
raised,  directly,  the  question  whether  the  deed  was  operative,  or  not, 
unless  there  had  been  a  delivery;  and  it  was  distinctly  held,  and 
stated  to  be  the  settled  doctrine  of  this  court,  that  a  delivery,  either 
actual  or  constructive,  was  essential  to  the  validity  of  a  gift ;  and  of 
course,  whether  the  gift  was  bj^  parol,  or  an  instrument  of  writing;  as 
the  question  then  under  consideration  arose  upon  a  deed  duly  exe- 
cuted and  recorded.  The  court  say,  in  that  case,  "As  between  the 
donor  and  donee,  the  gift  of  a  chattel  is  incomplete,  wdthout  delivery, 
or  some  act  equivalent  to  a  deliver}^,  if  at  the  time  the  thing  be  sus- 
ceptible of  transmission.  "We  do  not  say,  that  actual  delivery  is 
necessary;  it  may  be  constructive,  or  sjTiibolical.  Perhaps  the  de- 
livery of  a  deed,  or  having  it  recorded,  might  be  regarded  as  circum- 
stances sufficient  to  amount  to  a  delivery,  or  to  justify  the  presump- 
tion that  a  delivery  had  been  made.  We  only  decide,  that  delivery, 
actual  or  constructive,  is  necessary." 

The  fourth  case,  Haley  v.  Brown,  presented  the  precise  question 
under  consideration.  In  that  case,  there  was  no  written  opinion ;  but 
it  was  decided  expressly  upon  the  authority  of  the  case  previously 


CHAP.  VII.]  McWILLIE    V.    VAN    VACTER.  209 

cited.  The  case  of  Neivell  v.  Newell  recognizes  the  doctrine  held  in 
all  the  preceding  cases;  that  is,  that  "a  gift  is  never  complete  without 
a  delivery  of  the  property." 

It  has  been  supposed,  that  the  Statute  of  Frauds  (H.  Code,  637, 
sec.  2)  has  an  important  bearing  upon  the  subject.  The  expressed 
and  manifest  object  of  that  statute  was  to  protect  creditors  and 
purchasers,  Tsdthout  notice,  against  fraudulent  sales  and  voluntary 
gifts.  For  this  purpose,  the  statute  requires  that  possession  shall 
remain  with  the  donee,  or  a  deed  be  duly  executed  and  recorded,  as 
notice  to  the  world  that  the  gift  was  made.  It  is  clear,  that  the  stat- 
ute does  not  attempt  to  change  the  rule  at  common  law,  which  makes 
delivery  to  the  donee  essential  to  the  validity  of  a  gift  of  a  chattel 
personal.  It  proceeds  upon  the  presumption,  that  a  valid  gift  has 
been  made ;  and  provides  that  the  gift,  however  valid,  shall  not  stand 
against  creditors  and  purchasers,  unless  possession  shall  remain  with 
the  donee,  or  the  gift  be  e\Tidenced  by  deed  duly  executed  and  re- 
corded. It  is,  hence,  manifest  that  the  statute  has  no  application  to 
the  subject. 

As  delivery  is  the  act  by  which  the  donor  parts  vnth  his  title  and 
possession  to  the  subject  of  a  donation,  and  the  donee  acquires  the 
right  and  possession  thereto,  it  seems  too  plain  for  controversy,  that 
if  a  deed  of  gift  which  purports  to  transfer  the  possession  and  title 
to  a  chattel,  to  take  effect  in  presenti,  be  inoperative,  unless  delivery 
be  made  to  the  donee;  a  deed  of  gift  of  chattels,  which  purports  to 
convey  a  present  interest,  to  take  effect,  in  possession,  upon  some 
future  event,  where  possession  is  not  delivered,  but  is  expressly  re- 
served to  the  donor,  must  also  be  invalid. 

As  this  is  incontrovertibly  true,  in  order  to  avoid  a  very  palpable 
inconsistency,  we  would  be  driven  to  hold  that  the  gift,  in  either 
case,  i3  void  without  deliver}^  of  possession,  or  that  a  delivery  is  not 
necessary  to  the  validity  of  a  gift  of  a  chattel  personal:  But  if  we 
adopt  the  latter  alternative,  we  disregard  a  plain  principle  of  the 
common  law,  and  discard  a  doctrine  of  this  court,  which  has  been 
acted  upon,  by  citizens,  clients,  and  counsel,  for  near  a  quarter  of  a 
century,  as  the  settled  law  of  the  land. 

Handy,  J.,  delivered  the  following  opinion:  — 

The  question  is,  is  a  deed  of  gift,  signed,  sealed,  and  delivered  by 
the  donor  to  the  donee,  conveying  personal  chattels  to  the  donee, 
but  reserving  possession  to  the  donor  for  a  specified  time,  valid,  as 
between  the  donor  and  donee,  to  transfer  to  the  latter  the  title  to  the 
property? 

It  is  true,  that  the  negative  of  this  proposition  is  held  by  the  cases 
of  Thompson  v.  Thompson,  2  How.  737,  and  Marshall  v.  Fulgham, 
4  lb.  216.  In  the  former  of  these  cases,  it  is  to  be  observed,  the  in- 
strument under  which  the  title  was  claimed,  was  not  in  law  a  deed, 
and  could  not  import  any  of  the  legal  efficacy  of  a  deed.  The  ques- 


210  McWILLIE    V.    VAN    VACTER.  [cHAP.  VII, 

tion,  therefore,  did  not  properly  arise  in  that  case,  and  it  cannot  be 
considered  as  authority  upon  the  point. 

In  Marshall  v.  Fulgham,  there  was  no  reservation  of  possession 
to  the  donor,  in  the  deed;  but  it  is  broadly  held,  that  if  a  deed  does 
not  take  effect  by  immediate  delivery  of  possession  of  the  chattel, 
it  is  not  a  gift,  but  a  contract. 

The  authority  on  which  this  rule  is  stated,  is  2  Bl.  Comm.  442. 
But  it  appears  to  be  evident,  from  the  context,  that  Blackstone  re- 
ferred to  gifts  hj  parol,  in  the  passage  cited,  and  when  he  saj^s  that 
a  true  and  proper  gift  is  always  accompanied  by  delivery  of  the 
chattel;  for  he  states,  as  a  reason  for  it,  that  then  "it  is  not  in  the 
donor's  power  to  retract  it."  He  further  states,  that  without  de- 
liveiy,  it  is  not  a  gift,  but  a  contract.  Yet  he  shows  in  the  same 
chapter,  that  if  it  be  by  deed,  though  voluntary'',  it  imports  a  consid- 
eration, and  the  donor  is  bound  by  it.  So  that  the  general  remark, 
in  relation  to  the  necessity  for  delivery  of  possession,  must  have  been 
made  with  reference  to  what  he  denominates  "a  true  and  proper 
gift"  —  a  naked,  simple  gift  —  by  parol;  for  he  lays  it  down,  as  the 
general  rule,  that  gifts  of  chattels  may  be  made,  "either  in  \sTiting, 
or  by  word  of  mouth,  attested  by  sufficient  evidence,  of  which  de- 
livery of  possession  is  the  strongest  and  most  essential."  It  is,  there- 
fore, only  ui  point  of  e\'idence  of  the  fact  that  the  gift  has  been  made, 
that  delivery  of  possession  is  essential.  But  it  does  not  follow,  that 
that  fact  may  not  be  shown  by  other  evidence  than  delivery  of  pos- 
session. 

He  says  but  little,  as  to  gifts  by  \vTiting  or  deed,  because  such 
instruments  are  such  clear  e\adence  of  the  title  conveyed  by  them, 
that  they  would  speak  for  themselves,  and  required  nothing  to  be 
said,  as  to  their  nature  and  effect,  which  were  governed  by  the  gen- 
eral rules  applicable  to  deeds.  But  it  was  different  wdth  respect  to 
parol  gifts.  Being  doubtful  and  uncertain  as  to  their  true  character, 
and  as  to  the  evidence  upon  which  they  rested,  it  was  necessaiy  that 
some  decisive  act,  showing  clearly  that  the  donor  intended  that  the 
chattel  should  be  the  property  of  the  donee,  should  appear;  and  that 
act,  in  such  a  case,  was  the  delivery  of  possession.  But,  in  the  case 
of  a  conveyance  by  deed,  the  nature  of  the  title  is  rendered  certain 
to  the  donee,  and  the  donor  is  thereby  estopped  from  setting  up 
title,  contrary  to  the  terms  of  his  solemn  deed.  Hence  the  reasons 
stated  by  Blackstone,  as  rendering  delivery  necessary,  in  the  case 
of  a  parol  gift,  could  not  be  applicable  to  a  gift  by  deed. 

If,  however,  a  gift  by  deed  be  regarded  as  a  contract,  as  stated,  it 
can  make  but  little  difference,  as  between  the  donor  and  donee,  by 
what  name  the  act  is  designated ;  for  if  it  be  a  contract,  it  would  bind 
the  donor,  and,  in  equity,  the  donee  would  take  the  use  and  pos- 
session of  the  chattel  which  the  donor  had  contracted  to  convey, 
agreeably  to  the  terms  of  the  contract;  and,  as  to  creditors  and 


CHAP.  VII.]  McWILLIE    V.    VAX    VACTER.  211 

subsequent  purchasei-s,  the  deed,  if  recorded,  and  made  bona  fide,  is 
rendered  valid,  by  the  positive  provisions  of  the  Statute  of  Frauds. 

But  the  rule,  as  stated  in  Marshall  v.  Fulgham,  is  not  sustained  by 
the  subsequent  cases  in  this  court.  In  Carradine  v.  Collins,  7  S.  & 
M.,  it  is  said:  "As  between  donor  and  donee,  the  gift  of  a  chattel 
is  incomplete,  without  delivery,  or  some  act  equivaloU  to  delivery.^' 
"The  delivery  may  be  constructive,  or  sjinbolical.  Perhaps  the  de- 
livery of  a  deed,  or  having  it  recorded,  might  be  regarded  as  circum- 
stances sufficient  to  amount  to  deliver^'',  or  to  justify  the  presumption 
that  delivery  had  been  made.  We  do  not  decide  what  is  a  sufficient 
delivery,  or  what  is  sufficient  e\ddence  that  it  Vv^as  made.  We  only 
decide  that  delivery,  actual  or  constructive,  is  necessary."  And  this 
doctrine  is  sustained,  by  reference  to  the  cases  in  12  John.  188,  and 
10  lb.  293. 

It  is  worthy  of  remark,  that  the  case  cited  in  12  John.  Rep.  was 
a  title  set  up  under  a  parol  gift  of  a  slave;  and,  ^\dth  reference  to  such 
a  gift,  that  coui-t  says,  that  "a  delivery  of  possession  was  necessary 
to  a  change  of  property";  and  the  case  in  10  John.  Rep.  was  a  parol 
gift  of  a  chose  in  action;  and  the  court  saj^,  that,  in  such  a  case,  "de- 
livery of  possession  is  necessary  to  constitute  a  valid  gift."  But  noth- 
ing is  said,  nor,  indeed,  could  properly  have  been  said,  in  either  of 
these  cases,  as  to  the  validity  of  a  gift  by  deed,  -^dthout  delivery  of 
possession  of  the  chattel  to  the  donee. 

It  would  appear,  from  this  case  of  Carradine  v.  Collins,  that  it  was 
not  considered  to  be  necessary  that  there  should  be  an  actual  delivery 
of  the  chattel,  in  order  to  render  the  gift  valid,  when  it  was  made  by 
deed,  duly  signed,  sealed,  and  delivered;  and  this  doctrine  is  amply 
sustained  by  authority  and  by  sound  reason. 

It  is  said  that  the  case  of  Wall  v.  Wall,  30  Miss.  91,  is  not  an  au- 
thority upon  the  point,  because  the  question  was  not  there  presented, 
and  was  not  necessary  for  the  decision  of  that  case.  This  is  a  mis- 
apprehension. The  question  was,  whether  the  instrument,  in  that 
case,  was  a  will  or  a  deed.  That  was  the  question  argued  by  counsel, 
and  decided  by  the  court.  In  order  to  determine  whether  it  was  a 
deed,  the  question  was  distinctly  presented,  whether  the  disposition 
of  the  property,  made  by  it,  was  valid  in  law,  or  void.  And  that 
involved  two  questions,  —  whether  the  instrmnent  was  delivered; 
and  whether  it  was  valid,  the  possession  of  the  property  being  re- 
served to  the  donor  for  life.  It  was,  thereupon,  determined,  that  the 
disposition  was  legal,  and  hence  that  it  was  a  valid  deed,  and  not  a 
will;  so  that  the  character  and  legal  effect  of  the  instrument  were 
distinctly  presented. 

The  distinction  as  to  the  necessity  for  delivery  is  clearly  laid 
down  in  the  elementary  works.  "A  gift,"  says  Chitty,  "is  not  good 
and  binding,  unless  it  be  by  deed;  or  unless  the  thing,  which  forms 
the  subject  of  the  gift,  be  actually  delivered  to  the  donee."  Chitty 


212  McWILLIE    V.    VAN    VACTER.  [cHAP.  VII. 

Contr.  52.  The  same  rule  is  laid  down  in  Williams  on  Personal 
Property,  33.  It  is  also  held  by  adjudications  in  England,  as  a  rule 
of  the  common  law:  Iro7is  v.  Smallpiece,  2  Bam.  &  Aid.  (4  Eng.  C.  L. 
Rep.)  552;  Ward  v.  Audland,  16  M.  &  W.  871 ;  and  is  fully  sanctioned 
by  adjudicated  cases  in  this  country:  Banks  v.  Marberry,  3  Littell, 
276;  Bohn  v.  Headley,  7  Harr.  &  John.  257;  Caines  v.  Marley,  2 
Yerger,  582;  Duncan  v.  Self's  administrator,  1  Mai-p.  (N.C.)  466. 
And  no  adjudicated  case  has  been  produced,  holding  that  a  gift  by 
deed,  duly  executed  and  delivered,  without  delivery^  of  possession 
of  the  chattel  conveyed,  was  not  valid,  by  the  rules  of  the  common 
law,  except  it  be  Marshall  v.  Fulgham. 

These  authorities  appear  to  be  conclusive  of  the  question,  as  a  rule 
of  the  common  law. 

But  the  validity  of  such  a  gift  is  clearly  recognized  by  our  Statute 
of  Frauds.  Hutch,  Code,  638,  §  2.  It  enacts,  that  any  conveyance 
of  chattels,  not  upon  valuable  consideration,  shall  be  taken  to  be 
fraudulent,  as  to  creditors  and  subsequent  purchasers,  imless  the 
same  he  by  deed,  acknowledged  and  recorded,  or  unless  the  possession 
of  the  chattel  should  remain  with  the  donee.  This  statute,  it  is  true, 
has  especial  reference  to  creditors  and  subsequent  purchasers;  but 
it  distinctly  recognizes  the  validity  of  a  gift  of  chattels,  as  to  such 
persons,  pro\dded  it  be  made  bona  fide,  and  duly  acknowledged  and 
recorded.  And  would  it  not  be  absurd  to  hold  such  a  deed  valid,  as 
to  the  rights  of  creditors  and  subsequent  purchasers,  but  yet  void 
as  to  the  parties  themselves?  It  would  be  impossible  to  hold  that 
such  a  deed  was  valid  as  to  third  persons,  as  it  is  clearly  declared  by 
the  statute  to  be,  and  yet  inoperative  as  between  the  parties  to  it; 
for  that  would  be  contrary  to  all  reason,  as  well  as  the  rule  plainly 
recognized  by  the  statute,  that  the  deed  is  binding  between  the 
parties  to  it,  though  void  as  to  creditors  and  subsequent  purchasers ; 
and  though,  in  order  to  make  it  effectual,  as  to  such  persons,  it  must 
be  recorded,  yet,  as  between  the  parties,  no  registration  is  necessary, 
provided  it  be  a  deed  dulj^  executed  and  delivered. 

The  Statute  of  Frauds  has  indicated,  in  how  far  conveyances  of 
the  character  in  question  were  deemed  impolitic  and  not  to  be  coun- 
tenanced. But,  as  between  the  donor  and  donee,  irrespective  of  the 
claims  of  creditors  and  subsequent  purchasers,  no  reason  of  sound 
policy  appears  to  require  that  a  donor  shall  not  have  the  power,  by 
deed  duly  executed  and  delivered,  and  especially  if  recorded,  to  con- 
vey his  chattel  by  way  of  gift,  to  a  person  standing  in  such  a  relation 
of  blood  or  kindred  to  him,  as  to  constitute  a  good  consideration, 
to  take  effect  in  possession  at  a  specified  time.  Such  settlements 
appear  to  be  just  and  convenient  as  a  mode  of  disposition  of  prop- 
erty, enabling  the  donor  to  dispose  of  his  property  deliberately, 
while  in  the  enjo\Tnent  of  his  faculties,  carefully  fixing  the  terms 
upon  which  it  should  vest  in  possession  in  the  donee,  saving  the 


CHAP.  VII.]  BUTLER    AND    BAKER's    CASE.  213 

trouble  and  expense  of  administration  and  distribution,  and  making 
an  open  declaration  of  the  act;  and,  at  the  same  time,  assuring  and 
making  known  to  the  object  ®f  his  bounty,  the  portion  of  the  donor's 
property  which  he  was  to  receive,  without  the  power  of  revocation. 
It  is  easy  to  perceive  that,  in  such  dispositions  of  property,  nothing 
but  justice  would  be  done  to  those  who  should  be  the  beneficiaries 
of  the  donor's  property,  by  securing  it  to  their  use  beyond  the  power 
of  revocation,  but  to  take  effect  in  possession  at  the  time  which  the 
donor  had  seen  fit  to  appoint. 

Nor  does  this  rule  disturb  any  rights  which  may  have  been  ac- 
quired by  a  conformity  to  the  rule  in  Marshall  v.  Fulgham.  That 
decision  is  but  the  negation  of  a  power.  No  practice  can  have  growTi 
up  under  it  in  the  country,  and  no  instruments  could  have  been 
made  with  reference  to  it,  the  operation  of  which  would  be  affected 
by  the  view  of  the  question  here  taken.  But,  on  the  contrary,  the 
cases  are  numerous  in  the  country  where  this  rule  has  been  acted 
upon,  and  where  deeds  of  gift  have  been  made  in  good  faith,  and 
duly  delivered  and  recorded,  and  treated  by  the  parties  as  valid, 
reserving  possession  of  chattels  to  the  donor  for  a  specified  time.  In 
all  such  cases,  the  honest  intentions,  and,  it  may  be,  just  disposi- 
tions of  property,  of  the  donor,  would  be  defeated  under  the  rule 
contended  for,  and  wdth  the  most  unjust  consequences. 

Under  these  views  of  the  subject,  I  am  of  opinion  that  the  deed 
in  this  case,  if  it  had  been  duly  executed  and  delivered,  would  have 
been  valid,  as  between  the  donor  and  donee,  to  convey  the  slaves  to 
the  donee,  to  take  effect  in  possession  at  the  donor's  death. 

Note.  —  The  opinion  of  Handy,  J.,  that  a  deed  of  a  chattel  passes 
title  thereto  upon  delivery  of  the  deed  alone  is  supported  by  the 
weight  of  authority.  See  Connor  v.  Trawick's  AdmW,  37  Ala.  289,  294; 
Wyche  v.  Greene,  11  Ga.  159,  177;  Tarhox  v.  Grant,  56  N.  J.  Eq.  199, 
205;  Harten  v.  Gibson,  4  Desauss.  (S.C.)  139;  Caines  v.  Marley,  2 
Yerg.  (Tenn.)  582;  Hillehrant  v.  Brewer,  6  Tex.  45,  51;  Carr  v. 
Burdiss,  1  Cromp.  M.  &  R.  782,  788. 


BUTLER  AND  BAKER'S  CASE. 

3  Coke,  25  a.     1591. 

The  same  law  of  a  gift  of  goods  and  chattels,  if  the  deed  be  de- 
livered to  the  use  of  the  donee,  the  goods  and  chattels  are  in  the 
donee  presently,  before  notice  or  agreement;  but  the  donee  may 
make  refusal  in  pais,  and  by  that  the  property  and  interest  will  he 
devested,  and  such  disagreement  need  not  to  be  in  a  court  of 
record. 


214  BUTLER    AND    BAKER's    CASE.  [CHAP.  VII. 

Note.  —  Approved  in  Standing  v.  Bowring,  L.  R.  31  Ch.  D.  282. 

The  question  vrhether  acceptance  of  a  gift  of  chattels  is  neces- 
sary to  vest  title  in  the  donee  and  the  question  whether  acceptance 
of  a  deed  of  real  estate  is  necessary  to  vest  title  in  the  grantee  raise 
the  same  considerations.  The  second  question  has  been  before  the 
courts  much  oftener  than  the  first. 

The  authorities  are  tending  to  the  conclusion  that,  where  the 
deed  is  beneficial  in  its  character,  title  vests  in  the  grantee  upon 
delivery  of  the  deed,  without  more,  subject  to  divestment  upon 
actual  dissent  by  the  grantee.  There  is,  however,  important  au- 
thority to  the  contrary,  requiring  actual  assent  by  the  grantee,  — 
at  least,  if  the  grantee  is  not,  by  reason  of  infancy  or  lunacy,  incap- 
able of  actual  assent. 

On  the  question  whether  acceptance  of  a  gift  of  chattels  is  neces- 
sary to  vest  title  in  the  donee,  see  Bangs  v.  Browne,  149  Mich.  478; 
Beaver  v.  Beaver,  117  N.Y.  421,  429;  Davis  v.  Garrett,  91  Tenn.  147, 
152;  Mahoney  v.  Martin,  72  Kan.  406,  410.  In  Bangs  v.  Browne,  title 
to  a  bank  deposit  was  held  to  have  vested  in  the  donee,  although  the 
donee  had  no  knowledge  of  the  gift  until  after  the  donor's  death. 
In  Beaver  v.  Beaver  the  court  said:  "The  acceptance,  also,  may  be 
implied  where  the  gift,  otherwise  complete,  is  beneficial  to  the 
donee."  In  Davis  v.  Garrett,  the  court  held  that  "when  the  donee 
is  incapable  of  exercising  any  discretion  in  the  matter,  and  the  con- 
veyance is  clearly  beneficial,  the  law  wall  presume  an  acceptance." 
But  in  Mahoney  v.  Martin,  the  court  said:  "No  gift  can  be  complete 
\\'ithout  the  acceptance  thereof  by  the  donee.  The  law  presmries 
such  acceptance  in  the  absence  of  evidence  to  the  contrary.  When 
this  fact  is  disputed  its  determination  will  depend,  like  any  other 
question  of  fact,  upon  the  evidence.  .  .  .  The  court  found  from  the 
evidence  that  the  donee  did  not  accept  the  gift  during  the  life  of  the 
donor." 


CHAP.  VIII.]  NORTON    V.    WOODRUFF.  215 


CHAPTER   VIII. 
DISTINCTION  BETWEEN  A  SALE  AND  A  BAILMENT. 


NORTON  V.  WOODRUFF. 

2  N.Y.  153.     1849. 

Appeal  from  the  supreme  court,  where  the  action  was  assumpsit 
brought  by  Norton,  Baker  and  Hall  against  Woodruff,  tried  at  the 
Onondaga  circuit,  before  Whiting,  circuit  judge,  in  April,  1846.  The 
plaintiffs  claimed  to  recover  upon  a  contract  in  the  words  following, 
viz: 

"  I  agree  to  take  all  the  wheat  that  Norton,  Baker  and  Hall  have 
at  the  storehouse  of  S.  H.  Cook,  in  Camillus^  and  also  all  the  wheat 
they  have  at  the  storehouse  of  E.  Shead,  in  Belleisle,  and  give  them 
one  barrel  of  first-rate  superfine  flour  at  my  mill  in  Salina,  for  every 
four  and  36-60th  bushels  of  wheat.  I  am  to  take  the  wheat  at  the 
storehouses,  and  pack  the  flour  in  first-rate  barrels,  and  warrant  the 
flour  to  pass  inspection  in  Albany  or  New  York  market  for  good 
superfine  flour,  one  half  of  the  flour  to  be  delivered  on  Friday  of 
next  week,  and  the  balance  on  Friday  of  the  week  after,  and  as  much 
sooner  as  I  can  make  it.  The  wheat  is  to  be  of  good  merchantable 
quality.  J.  C.  Woodruff. 

"Salina,  Oct.  2,  1845.  Norton,  Baker  and  Hall." 

It  was  proved  that  the  quantities  of  wheat  mentioned  in  the  alcove 
contract  amounted  to  3848  bushels,  all  of  which  was  received  into 
the  defendant's  mill,  in  pursuance  of  the  contract,  on  the  6th  and 
8th  days  of  October,  1845;  that  the  defendant  had  on  hand  at  the 
time  about  4000  bushels  of  other  wheat  of  about  the  same  quality 
as  that  received  from  the  plaintiffs,  and  that  on  receiving  the  wheat 
in  question  the  whole  was  mixed  together.  It  also  appeared  that  the 
wheat  would  make  about  one  barrel  of  superfine  flour  to  four  and 
15-60ths  bushels  of  wheat;  that  the  defendant's  mill  would  grind 
about  100  barrels  of  flour  per  day  besides  ordinary  custom  work; 
that  the  defendant  was  in  the  habit  of  taking  in  wheat  almost  daily, 
none  of  which  was  kept  separate;  and  that  he  supplied  persons  with 
whom  he  dealt  with  flour  made  from  the  common  mass  of  wheat, 
including  that  received  from  the  plaintiffs.  On  the  10th  day  of 
October,  1845,  the  defendant  delivered  to  the  plaintiffs  420  barrels 
of  flour  upon  the  aforesaid  contract,  and  no  more  was  ever  delivered. 


216  NORTON    V.    WOODRUFF.  "[CHAP.  VIII. 

On  the  part  of  the  defendant  it  was  proved  that  on  the  night  of 
the  12th  of  October,  1845,  the  mill  accidentally  took  fire  and  was 
consumed,  with  all  its  contents,  without  any  fault  or  negligence  of 
the  defendant.  There  was  then  in  the  mill  about  4000  bushels  of 
wheat,  including  nearly  2000  bushels  of  the  wheat  received  from  the 
plaintiffs,  and  about  150  barrels  of  flour  packed. 

The  defendant  insisted  that  the  contract  was  one  of  bailment, 
and  not  of  sale,  and  therefore  that  by  the  destruction  of  his  mill 
and  its  contents  without  fault  on  his  part,  he  was  excused  from 
delivering  the  residue  of  the  flour.  The  circuit  judge  so  held,  and 
on  that  ground  nonsuited  the  plaintiffs.  The  plaintiffs  excepted, 
and  moved  in  the  supreme  court  for  a  new  trial,  which  was  granted 
by  that  court  sitting  in  the  Seventh  District.  The  defendant  ap- 
pealed to  this  com't. 

Gardiner,  J.,  delivered  the  opinion  of  the  court. 
f        The  only  question  necessary  to  be  considered  is,  whether  the 
/      terms  of  the  contract  taken  in  reference  to  the  subject-matter  and 
\       the  situation  of  the  parties,  fairly  import  a  sale  or  a  bailment. 
[  Neither  the  declarations  nor  the  conduct  of  the  defendant  subse- 

;  quent  to  the  agreement,  were  admissible  mth  a  view  to  its  construc- 
1  tion.  Evidence  of  this  character  may  be  resorted  to  for  the  purpose 
of  proving  a  contract,  or  the  sense  in  which  particular  terms  were 
used  by  the  parties,  and  sometimes  with  a  view  to  show  a  conversion 
of  the  property  where  a  bailment  has  been  previously  established. 
Here,  however,  the  contract  is  in  writing.  There  is  no  such  ambi- 
guity in  the  terms  as  requires  the  aid  of  extrinsic  testimony  to 
explain  them,  and  the  rights  of  the  parties  must  consequently  be 
determined  by  its  language. 

It  appears,  then,  by  the  contract,  that  the  defendant  agreec^ 
to  take  all  the  wheat  of  the  plaintiffs  at,  etc.,  and  give  them  one 
barrel  of  first-rate  superfine  flour  for  every  four  bushels  and  fifty-six 
pounds  of  wheat  of  a  good  merchantable  quality;  the  flour  to  be 
packed  in  first-rate  barrels  and  warranted  to  pass  inspection  in 
Albany  and  New  York  for  good  superfine  flour.  If  the  word  "take" 
as  it  seems  in  this  contract  is  equally  applicable  to  a  bailment  as 
to  a  sale  or  exchange,  and  therefore  equivocal,  the  term  "give" 
requires  some  act  of  the  defendant  which  should  pass  the  property 
in  the  flour  to  the  plaintiffs.  As  a  word  of  contract,  it  demands 
something  more  than  the  re-delivery  of  the  plaintiffs'  wheat  in  the 
form  of  flour.  It  implies  that  the  property  in  the  thing  to  be  given 
is  in  the  donor  until  changed  by  delivery.  The  word  does  not  import 
a  mere  gratuity,  since  the  defendant  was  to  "give"  superfine  flour 
"for,"  that  is,  in  consideration  of,  or  as  an  equivalent  for,  the  wheat 
taken  by  him  from  the  plaintiffs. 

There  is  nothing  in  the  contract  that  expressly  or  by  implication 


CHAP.  VIII.]     SOUTH    AUSTRALIAN    INSURANCE    CO.  V.  RANDELL.     217 

obliged  the  defendant  to  deliver  to  the  plaintiffs  flour  manufactured 
from  this  wheat,  or  wheat  of  a  similar  quality,  to  the  exclusion  of 
any  other  in  their  possession,  or  which  they  might  subsequently 
obtain.  The  agreement  upon  his  part  was  satisfied  by  the  delivery 
of  a  barrel  of  first-rate  superfine  flour  for  every  four  bushels  and 
fifty-six  pounds  of  wiieat  received  by  him,  whether  manufactm'ed 
at  his  mill  or  elsewhere,  obtained  by  purchase  or  otherwise.  This  is  a 
controlhng  circumstance  to  show'  that  the  parties  intended  a  sale  or 
exchange  and  not  a  bailment.  The^  disjjnrtion  between  an  obligation 
to  restore  tli*'  sjx'cific  thing  received,  or  of  retuniTiiU  i  I'l  •  i  >  d^egual 
value',  is  the  distinction  between  a  bailment  and  a  del.t,  *o  recog-^ 
nized  by  the  decisions  in  England  and  this  state,  w-ith  the  exciptiou 
of  Seymour  v.  Brown,  10  John.  Rep.  44.  Jones  on  Bailment,  1U2,  (34; 
7  Cowen  Rep.  756;  Smith  v.  Clarke,  21  Wend,  84;  Dykers  v.  Allen, 
7  Hill,  498;  2  Kent,  Com.  590.  The  decision  in  Seymour  v.  Brown  has 
been  overruled  in  the  same  court  in  which  it  was  pronounced,  and 
cannot,  we  think,  be  sustained  either  upon  principle  or  authority. 
\  new  trial  must  be  granted. 

New  trial  granted. 


SOUTH   AUSTRALIAN   INSURANCE    CO.   v.   RANDELL. 

L.  R.  3  P.  C.  101.     1869. 

This  was  an  action  on  a  fire  policy  of  insurance,  in  which  the 
respondents  were  plaintiffs,  and  the  appellants  were  defendants. 

The  appellants  w^ere  an  insurance  company,  carrying  on  business 
in  the  province  of  South  Australia,  and  having  their  principal  place 
of  business  at  Adelaide,  in  that  province.  The  respondents  were 
millers,  carrying  on  business  at  Blumberg,  in  the  same  province. 

The  facts  were  these:  — 

On  the  4th  of  July,  1866,  application  was  made  to  the  appellants 
by  the  respondents,  to  insure  the  current  stock  in  their  mill,  namely, 
wheat,  flour,  sacks,  etc.,  to  the  amount  of  £1250,  against  loss  or 
damage  by  fire,  and  on  the  same  day  an  insurance  was  effected  in 
the  terms  of  such  application,  and  subject  to  the  conditions  indorsed 
on  the  policy;  one  of  which  was  that  "Goods  held  in  trust  or  on 
commission  must  bo  insured  as  such,  otherwise  the  policy  will  not 
extend  to  cover  them." 

On  the  17th  of  February,  1867,  a  fire  occurred,  whereby  the 
respondents'  mill,  with  the  stock  therein,  was  destroyed.  A  claim 
was  made  by  the  respondejits  for  the  loss,  but  the  amount  being 
disputed  by  the  appellants,  an  action  was  brought  by  them  to 
recover  the  value  of  the  stock. 

The  plaintiffs  declared  upon  the  policy,  and  the  defendants 
pleaded,  that  the  plaintiffs  were  not  interested  in  the  stock,  and  also 


218     SOUTH    AUSTRALIAN    INSURANCE    CO.  V.  RANDELL.     [CHAP.  VIII. 

that  in  their  proposals  for  the  insurance  they  represented  that  the 
stock  was  to  be  insured  for  themselves,  whereas  it  was  held  by  the 
plaintiffs  in  trust  for  other  persons.  Issue  was  joined  on  the  pleas, 
and  the  action  was  tried  before  the  chief  justice  and  a  jury. 

Upon  the  trial  it  was  admitted  by  the  plaintiffs,  that  the  stock 
which  had  been  destroyed  by  the  fire  had  been  paid  for  by  the 
defendants,  except  such  portion  as  the  defendants  alleged  was  held 
by  the  plaintiifs  in  trust  for  others;  and  the  question  was,  whether 
such  portion,  consisting  of  wheat,  was  held  by  the  plaintiffs  in  trust, 
within  the  meaning  of  the  above  condition,  and  was  therefore  not 
covered  by  the  pohcy. 

The  evidence,  so  far  as  it  was  material  to  this  question,  shewed 
that  according  to  the  plaintiffs'  custom  and  course  of  business 
wheat  was  received  by  them  from  farmers  to  whom  such  course  of 
business  and  dealing  was  known,  and  on  receipt,  shot  out  of  bags  in 
the  presence  of  the  farmers  who  brought  it  into  large  hutches,  where 
it  became  mixed  with  other  wheat  which  had  been  received  in  a 
similar  manner,  and  on  part  of  which  advances  had  been  made  to 
the  farmers  by  the  plaintiffs.  The  wheat  thus  mixed  lost  its  identity 
and  became  the  current  stock  of  the  plaintiffs,  which,  according  to 
their  course  of  dealing,  known  to  the  farmers,  was  either  sold  as 
wheat  by  the  plaintiffs  or  gi'ound  in  their  mill.  The  plaintiffs  could 
do  what  they  liked  with  it.  If  gi'ound,  the  flour  produced  from  such 
stock  was  sold  and  othei-wise  dealt  with  bj''  the  plaintiffs  as  they 
thought  fit,  and  as  their  own  property.  It  never  was  intended  by  the 
parties  that  the  identical  wheat  delivered  by  the  farmers  should  be 
returned  to  them.  On  delivery  of  the  wheat  to  the  plaintiffs  they 
gave  to  the  farmer  a  receipt  in  these  terms,  "  Received,  etc.,  to  store," 
and  it  was  shot  to  be  stored  or  taken  on  storage.  The  farmer  could 
at  any  time  demand  an  equal  quantity  of  wheat  of  like  quality 
with  that  delivered  by  him  to  the  plaintiffs,  or  the  market  price 
of  an  equal  quantity,  fixing  the  price  as  of  the  day  on  which  he 
made  his  demand.  The  plaintiffs  had  the  option  of  delivering  wheat 
of  like  quality  or  paying  such  market  price.  Advances  were  fre- 
quently made  to  the  farmers  by  the  plaintiffs  in  respect  of  the 
wheat  so  delivered  to  them.  No  charge  was  made  bj'  the  plaintiffs 
in  respect  of  the  wheat  until  after  the  lapse  of  a  certain  time,  when 
the  charge  was  one  farthing  per  bushel  per  month.  The  wheat  in 
question  had  been  brought  by  farmers  to  the  plaintiffs  in  manner 
aforesaid,  and  in  the  course  of  business,  and  had  been  mixed  with 
other  wheat,  and  treated  in  the  manner  aforesaid,  and  a  portion 
of  it  had  been  paid  for  by  the  plaintiffs.  No  evidence  was  adduced 
on  the  part  of  the  defendants,  but  their  counsel  applied  for  a  nonsuit 
on  the  ground  that  the  wheat  was  held  in  trust,  and  was  not  the 
property  of  the  plaintiffs. 

The  chief  justice  declined  to  nonsuit  the  plaintiffs,  and  by  consent 


CHAP.  VIII.]     SOUTH    AUSTRALIAN    INSURANCE    CO.  V.  RANDELL.     219 

the  verdict  was  entered  for  them  for  £698,  including  interest,  with 
leave  to  the  defendants  to  move  to  enter  a  verdict  for  them  if  the 
court  should  be  of  opinion,  that  the  wheat  so  taken  on  storage  was 
held  in  trust  within  the  terms  of  the  conditions  in  the  policy. 

A  rule  nisi  was  granted  calling  on  the  plaintiffs  to  shew  cause 
why  the  verdict  for  the  plaintiffs  should  not  be  set  aside  and  a 
verdict  entered  for  the  defendants,  pursuant  to  leave  reserved, 
upon  the  following  grounds :  First,  that  the  goods  stored  had  not 
been  assured  by  the  plaintiffs;  and  secondlj^  that  the  wheat  taken 
on  storage  was  held  upon  trust  within  the  terms  of  the  conditions 
of  the  policy. 

This  rule  came  on  to  be  argued  before  the  chief  justice  and 
Mr.  Justice  Gwynne,  when  the  court  was  divided  in  opinion, 
Mr.  Justice  Gwynne  being  of  opinion,  that  the  property  in  the 
wheat  when  delivered  was  vested  in  the  plaintiffs  beneficially,  as 
their  owoi  property,  and  was  not  property  held  in  trust;  the  chief 
justice  being  of  the  contrary  opinion,  and  Mr.  Justice  Wearing 
being  precluded  from  taking  part  in  the  judgment,  the  rule  was 
discharged. 

From  this  judgment  the  present  appeal  was  brought. 

Their  Lordships'  judgment  was  pronounced  by  Sir  Joseph 
Napier:  — 

The  question  in  this  case  is,  whether  the  wheat  that  was  taken  in 
storage  by  the  respondents,  under  the  circumstances  stated  in  the 
chief  justice's  notes  of  the  evidence  at  the  trial  before  him,  is  to  be 
considered  as  property  held  by  the  respondents  in  trust,  or  whether 
it  is  correctly  described  in  the  proposal  and  in  the  policy  of  insurance 
as  property  in  which  the  respondents  were  interested  for  themselves? 
According  to  the  case  that  was  cited  by  Mr.  Thesiger  in  his  very 
able  argument,  the  words  of  the  policy  as  to  property  held  in  trust 
ought  not  to  receive  a  technical  chancerj^  construction  (if  I  may  so 
call  it);  but  the  substantial  question  is,  whether  the  respondents 
were  the  beneficial  owners  of  the  wheat  insured,  or  had  merely  the 
possession  as  bailees,  whilst  the  property  remained  in  the  farmers 
who  delivered  the  wheat,  so  long  at  least  as  it  was  not  actually 
appropriated  by  use  or  payment  on  the  part  of  the  respondents? 

Looking  to  the  evidence,  in  order  to  ascertain  the  conditions  upon 
which  this  wheat  was  delivered  and  taken  in  storage,  we  find  in  the 
evidence  of  Randell  (one  of  the  plaintiffs)  the  following  passage: 
"At  the  time  of  the  fire  the  whole  of  the  wheat,  excepting  a  few 
bags  —  not  more  than  twenty  —  was  in  bulk.  It  had  been  shot  out 
of  bags  into  large  hutches.  Have  been  a  miller  twelve  years.  The 
wheat  was  ours  to  do  what  we  thought  proper.  We  might  grind  or 
sell;  and  when  any  one  came  who  had  brought  us  wheat,  we  had  to 
pay  market  price  of  equal  quality."  Again,  the  foreman  of  the  plain- 
tiffs, in  his  evidence,  says:  "Farmer  brings  the  wheat,  and  he  can 


220     SOUTH    AUSTRALIAN    INSURANCE    CO.  V.  RANDELL.     [cHAP.  VIIL 

sell  it  when  he  pleases  to  the  miller.  Miller  can  do  what  he  likes  with 
it,  grind  it  or  sell  it.  All  wheat  when  brought  was  emptied  at  once 
into  a  storing-place  in  presence  of  farmer  who  brought  it." 

The  evidence  of  the  only  farmer  who  was  examined  does  not 
throw  any  hght  upon  the  question,  but  rather  obscures  it.  The 
substance  and  effect  of  all  the  evidence  that  bears  on  this  part  of 
the  case  is  this.  When  wheat  was  brought  by  the  fanner  to  the 
miller,  he  deHvered  it  to  the  miller  to  be  stored  with  his  current 
stock  that  was  used  for  the  known  purposes  of  his  trade.  It  was, 
■mth  the  consent  of  the  farmer,  put  into  storage  with  this  con- 
sumable stock  of  the  miller;  the  farmer  got  a  storage  receipt  for  it, 
and  might  afterwards  come  at  any  time  he  thought  fit  to  claim  the 
price  of  the  same  quantity  of  wheat  of  equal  quahty  according  to 
the  market  price  of  the  day  on  which  he  claimed  payment. 

The  evidence  is  somewhat  confused  and  inconsistent  on  the  sur- 
face in  one  or  two  places,  but  it  sufficiently  appears  that  the  farmer 
had  the  right  to  select  his  time  for  demanding  pajTnent  for  the 
wheat,  which,  with  his  consent,  was  stored  at  the  time  of  deliveiy, 
as  part  of  the  current  consumable  stock  which  the  miller  might 
grind  or  sell  or  use  at  his  wall  and  pleasure  for  his  ovm  profit. 

There  is  no  direct  evidence  that  the  fanner  had  the  option  of 
claiming  an  equal  quantity  of  wheat  of  the  like  quality,  instead 
of  the  value  in  money;  and  from  the  veiy  nature  of  the  dealing  he 
could  not  get  back  the  identical  wheat  dehvered,  as  it  was  mixed 
in  the  common  stock  with  his  consent. 

A  bailment  on  trust  implies,  that  there  is  reserved  to  the  bailor 
the  right  to  claim  a  redeliver}^  of  the  property  deposited  in  bailment. 
No  doubt  the  cases  that  are  referred  to  are  generally  cases  of  a  bail- 
ment Tvithout  a  question  of  mixture.  Mr.  Thesiger  in  his  argument 
put  it  as  if  there  was  some  distinction  in  the  case,  in  favour  of  the 
appellants,  on  account  of  the  mixture;  but  the  facts  as  they  appea" 
on  the  evidence  exclude  the  applicability  of  such  a  distinction 
Taking  the  view  of  it  most  favourable  to  his  argument,  that  the 
farmer  could  claim  as  of  right  an  equal  quantity  of  the  like  quality, 
this  must  be  without  reference  to  any  specific  bulk  from  which  it 
should  be  taken,  for  the  stock  with  which  he  consented  to  allow 
his  wheat  to  be  mixed  might  all  have  been  used  for  the  benefit  of 
the  miller  before  the  claim  of  the  farmer  would  be  put  fonvard. 

The  law  seems  to  be  concisely  and  accurately  stated  by  Sir 
William  Jones  in  the  passages  cited  by  Mr.  Mellish  from  his  treatise 
on  Bailments,  pp.  64  and  102  [3d  ed.].  Wherever  there  is  a  delivery 
of  property  on  a  contract  for  an  equivalent  in  money  or  some  other 
valuable  commodity,  and  not  for  the  return  of  his  identical  subject-/ 
matter  in  its  original  or  an  altered  form,  this  is  a  transfer  of  propertjf  1 
for  value  —  it  is  a  sale  and  not  a  bailment.  / ! 

Chancellor  Kent  in  his  Commentaries  (vol.  ii,   §  589,  p.  78t,j 


CHAP.  VIII.]     SOUTH    AUSTRALIAN    INSURANCE    CO.  V.  RANDELL.     221 

11th  eel),  where  he  refers  to  the  case  of  Seymour  v.  Brown,  of  which 
he  disapproves  in  common  with  Mr.  Justice  Story,  adopts  the  test, 
whether  the  identical  subject-matter  was  to  be  restored  either  as  it 
stood  or  in  an  altered  form;  or  whether  a  different  thing  was  to  be 
given  for  it  as  an  equivalent;  for  in  the  latter  case  it  was  a  sale,  and 
not  a  bailment.  This  is  the  true  and  settled  doctrine  according  to 
his  opinion.  Now,  the  farmers  do  not  appear  on  the  evidence  to  have 
contracted  for  more  than  to  be  paid  for  an  equal  quantity  of  the  like 
quality  of  wheat,  delivered  at  the  market  price  of  the  day  on  which 
a  settlement  should  be  demanded.  Supposing  that  there  was  an 
implied  option  to  claim  an  equal  quantity  of  the  like  qualitj'  at  any 
time  after  delivery,  there  could  be  no  right  of  claiming  an  aliquot 
part  of  the  identical  bulk  with  which  his  wheat  was  mixed  up  at  the 
time  of  delivery,  for  this  was  consumable  at  the  wdll  and  pleasure 
of  the  miller,  as  part  of  the  current  stock,  liable  to  fluctuation,  from 
time  to  time,  both  in  quantity  and  quality. 

Moreover,  it  appears  to  their  Lordships,  that  there  is  no  sound 
distinction,  in  principle,  between  this  and  the  case  of  money  depos- 
ited -^dth  a  banker  on  a  deposit  receipt.  It  may  have  been  deposited 
in  negotiable  paper,  in  bank-notes,  or  in  sovereigns,  but  it  is  paid 
in  upon  the  kno^m  course  and  conditions  of  the  banker's  dealings. 
A  man  is  supposed  to  intend  the  natural  consequence  of  his  acts. 
He  knows  the  course  of  dealing;  he  hands  in  the  money;  he  gets  a* 
deposit  receipt ;  he  knows  that  the  monej^  is  taken  by  the  banker  to 
be  dealt  with  as  part  of  his  current  capital,  to  be  used  as  his  own  for 
his  own  pm-poses.  By  the  deposit,  it  is  placed  in  the  disposing  power 
of  the  banker;  and  surely  he  who  has  acquired  the  disposing  power 
over  property  for  his  oa\ti  benefit,  without  the  control  of  another, 
has  the  beneficial  owaiership. 

In  the  banker's  case  in  the  House  of  Lords,  the  case  of  Foleij  v. 
Hill,  2  H.  L.  C.  28,  the  question  was  fully  discussed,  whether  a 
banker,  under  such  circumstances,  could  be  considered  and  dealt 
with  as  a  trustee;  Lord  Cottenham  saj^s  (at  page  36):  "Monej'', 
when  paid  into  a  bank,  ceases  altogether  to  be  the  money  of  the 
principal  (see  Parker  v.  Marchant,  2  Philips,  360);  it  is  then  the 
money  of  the  banker,  who  is  bound  to  return  an  equivalent  by 
paying  a  similar  sum  to  that  deposited  with  him,  when  he  is  asked 
for  it.  The  money  paid  into  the  bankers  is  money  known  by  the 
principal  to  be  placed  there  for  the  purpose  of  being  under  the 
control  of  the  banker;  it  is  then  the  banker's  money;  he  is  known  to 
deal  with  it  as  his  ovm;  he  makes  what  profit  of  it  he  can,  which 
profit  he  retains  to  himself,  paying  back  only  the  principal,  according 
to  the  custom  of  bankers  in  some  places,  or  the  principal  and  a  small 
rate  of  interest,  according  to  the  custom  of  bankers  in  other  places. 
The  money  placed  in  the  custody  of  a  banker  is,  to  all  intents  and 
purposes,  the  money  of  the  banker,  to  do  with  it  as  he  pleases ;  he  is 


222     SOUTH    AUSTRALIAN    INSURANCE    CO.  V.  RANDELL.     [CHAP.  VIII. 

guilty  of  no  breach  of  trust  in  employing  it;  he  is  not  answerable  to 
the  principal  if  he  puts  it  into  jeopardy,  if  he  engages  in  a  hazardous 
speculation;  he  is  not  bound  to  keep  it,  or  deal  with  it  as  the  property 
of  his  principal,  but  he  is,  of  course,  answerable  for  the  amount, 
because  he  has  contracted,  having  received  that  money,  to  repay  to 
the  principal,  when  demanded,  a  sum  equivalent  to  that  paid  into 
his  hands." 

An  indelible  incident  of  trust  property  is  that  a  trustee  can 
never  make  use  of  it  for  his  own  benefit.  An  incident  of  property, 
that  is  in  bailment,  is  that  the  bailor  may  requii'e  its  restoration. 
This  right  of  recalling  the  deposit  is  relied  on  by  Lord  Cottenham 
(p.  39) ,  as  a  test  to  try  the  principle  on  which  the  fiduciary  relation 
was  sought  to  be  maintained.  But  in  this  case,  no  right  seems  to 
exist  on  the  part  of  the  depositor  to  get  back  either  his  identical 
wheat,  or  a  share  of  the  specific  bulk  in  which  his  wheat  was  mixed 
with  his  consent;  there  is  no  such  right  on  the  one  side,  while,  on 
the  other,  there  is  the  power  in  the  miller  of  doing  what  he  liked 
with  the  wheat  after  it  became  part  of  his  current  stock.  This  is  an 
inverted  order  of  right  that  is  whoU}'  inconsistent  with  the  relation 
of  trustee  and  cestui  que  trust  that  is  contended  for  in  this  case. 

Lord  Brougham,  in  the  case  already  cited,  says  (p.  43):  ''Now, 
as  to  the  banker:  is  his  position  with  respect  to  his  customers  that 
-  of  a  trustee  with  respect  to  his  cestui  que  trust  ?  Is  it  that  of  a  princi- 
pal with  respect  to  an  agent,  or  that  of  a  principal  with  respect  to  a 
factor?  I  see  no  gi'ound  for  contending  that  there  is  any  identity 
in  those  two  points.  I  am  now  speaking  of  the  common  position  of  a 
banker,  which  consists  of  the  common  case  of  recei\'ing  money  from 
his  customer  on  condition  of  paying  it  back  when  asked  for,  or  when 
drawn  upon;  or  of  receiving  money  from  other  parties,  to  the  credit 
of  the  customer,  upon  like  conditions  to  be  drawn  out  by  the  cus- 
tomer, or,  in  common  parlance,  the  money  being  repaid  when  asked 
for,  because  the  party  who  receives  the  money  has  the  use  of  it  as 
his  o'um,  and  in  the  using  of  which  his  trade  consists,  and  but  for 
which  no  banker  could  exist,  especially  a  banker  who  pays  interest. 
But  even  a  banker  who  does  not  pay  interest  could  not  possibly  carry 
on  his  trade  if  he  were  to  hold  the  money  and  to  pay  it  back,  as  a 
mere  depositary  of  the  principal.  But  he  receives  it,  to  the  knowledge 
of  his  customer,  for  the  express  purpose  of  using  it  as  his  own,  which, 
if  he  were  a  trustee,  he  could  not  do  without  a  breach  of  trust." 

As  to  the  charge  for  storage,  it  is  to  be  observed,  that  it  is  not 
the  storage  of  the  wheat  that  was  actually  delivered,  or  of  an  equal 
quantity  of  the  specific  stock  with  which  it  was  mixed  up  at  the 
time  of  delivery,  but  storage  for  an  equal  quantity  which  is  assumed 
to  have  been  kept  in  the  current  stock  of  the  mill.  It  seems  to  be 
an  equitable  term  of  the  final  settlement,  in  which  the  farmer  has 
the  benefit  of  selecting  the  time  that  is  most  advantageous  for  him- 


CHAP.  VIII.]     SOUTH    AUSTRALIAN    INSURANCE    CO.  V.  RANDELL.     223 

self  to  claim  payment  at  the  market  price  of  the  day  for  the  same 
quantity  of  like  quality  of  wheat  that  he  delivered. 

The  charge  or  deduction  for  storage  of  so  much  in  quantity  as 
was  delivered  may  be  set  off  against  the  farmer's  privilege  of  select- 
ing his  o\\Ti  time  for  paATnent  at  the  market  rate  of  the  day. 
This  is  the  more  reasonable  if  there  was  an  option  on  the  part  of 
the  miller  to  give  the  farmer  a  like  quantity  of  a  like  quality,  because 
he  might  then  be  supposed  to  have  kept  a  quantity  in  storage  for 
the  purpose  of  having  it  in  his  power  to  exercise  this  option;  or  if 
the  farmer  had  a  corresponding  option  of  claiming  an  equal  quantity 
of  like  quality,  instead  of  the  money  value.  But,  however  this  may 
be,  it  does  not  vary  the  general  nature  of  the  case  any  more  than 
where  deposits  are  made  with  a  banker  for  a  given  time,  and  he 
allows  a  small  rate  of  interest  on  the  money. 

Putting  the  insurance  out  of  view,  let  us  see  on  whom  would  the 
loss  fall  of  the  stored  wheat  destroyed  by  this  fire.  Would  it  be 
any  answer  for  the  miller  to  say  to  the  farmer  when  he  came  to 
claim  the  price  of  the  wheat  according  to  contract:  "All  this  wheat 
has  been  destroyed  by  a  fire"?  The  farmer  might  well  reply;  "It 
was  delivered  to  you,  and  at  once  put  into  your  current  stock,  to  be 
used  as  you  thought  fit  for  your  own  use  and  benefit.  You  acquired 
complete  dominion  over  it,  and  you  must,  therefore,  bear  the  loss," 
It  is  not  upon  the  exercise  of  a  dominion  not  subject  to  control,  but 
upon  having  such  dominion,  that  beneficial  ownership  depends.  The 
party  who  has  acquired  such  dominion  over  property  is  not  bound 
to  exercise  it  in  any  particular  way  or  at  any  particular  time,  but 
the  having  the  power  to  use  property  as  his  own  for  his  own  purposes 
is  wholly  irreconcilable  with  the  notion  of  his  being  a  trustee  of  the 
property,  holding  it  for  the  benefit  of  his  cestui  que  trust. 

There  is  a  passage  in  "Doctor  and  Student"  "Dial,"  by  Murchall 
[ed.  1815],  to  which  reference  may  here  be  made.  It  is  in  the  second 
dialogue,  eh.  xxxviii:  "A  man  may  have  of  another  by  way  of  loan 
or  borro"VNnng  money,  com,  wine,  and  such  other  things,  where  the 
same  thing  cannot  be  delivered  if  it  be  occupied,  but  another  thing 
of  like  najiure  and  like  value  must  be  delivered  for  it ;  and  such  things 
he  that  they  be  lent  to,  may,  by  force  of  the  loan,  use  as  his  own;  and, 
therefore,  if  they  perish,  it  is  at  his  jeopardy."  Here,  by  force  of  the 
contract,  the  miller  might  use  as  his  own  the  whole  of  the  wheat  that 
was  delivered  to  him  by  the  farmers.  Accordingly,  the  miller  would 
be  responsible  to  the  farmers,  notwithstanding  the  loss  of  the  wheat 
by  the  fire,  Res  suo  peril  domino. 

If,  then,  the  property  was  so  vested  in  the  respondents  that  they 
must  bear  the  loss  by  the  fire,  if  not  indemnified  by  insurance,  is 
not  this  the  very  case  in  which,  on  effecting  an  insurance,  a  man 
ought  to  describe  the  property  substantially  and  honestly  as  being 
insured  for  himself  and  not  held  in  trust  for  the  benefit  of  another? 


224     SOUTH    AUSTRALIAN    INSURANCE    CO.  V.  RANDELL.     [CHAP.  VIII 

Although  afterwards  there  may  have  been  some  inexactness  and 
inconsistency  in  the  language  of  Mr.  Randell,  when  trying  to  get 
a  settlement  and  meeting  objections  that  were  raised  by  the  appel- 
lants (and  we  all  know  that  such  is  not  unusual  in  disputed  cases), 
this  cannot  alter  the  legal  result  of  the  whole  transaction.  It  depends 
upon  ascertained  facts,  and  we  are  bound  here  to  read  the  report  of 
the  evidence  as  reasonable  men  with  the  eyes  of  common  sense,  and 
to  make  every  just  inference  which  the  statement  of  the  evidence 
fairly  warrants. 

Their  Lordships  do  not  find  anything  in  the  judge's  notes  that  is 
not  reconcilable  with  the  plaintiffs'  statement  of  the  result  of  the 
dealings.  "The  wheat  was  ours  to  do  what  we  thought  proper. 
We  might  grind  or  sell;  and  when  any  one  came  who  brought  us 
wheat,  we  had  to  pay  market  price  of  equal  quality."  The  result  is, 
in  the  opinion  of  their  Lordships,  that  the  farmers  who  delivered 
their  wheat  to  the  respondents  upon  the  terms  disclosed  in  the  evi- 
dence should  not  be  considered  aftenvards  to  be  the  beneficial  owners 
and  the  respondents'  bailees  in  trust  for  the  farmers. 

It  appears  to  their  Lordships,  that  this  is  not  the  case  of  a  pos- 
session given  subject  to  a  trust,  but  that  it  is  the  case  of  a  property 
transferred  for  value,  at  the  time  of  delivery,  upon  special  terms  of 
settlement. 

What  Chancellor  Kent  (§  589,  p.  781,  11th  ed.)  describes  as 
"the  true  and  settled  doctrine,"  which  had  been  disturbed  by  the 
case  of  Seijmour  v.  Brown,  19  Johns.  (Amr.)  Rep.  44,  but  has  been 
resettled  by  subsequent  decisions,  is  the  doctrine  which  is  laid  down 
with  his  known  precision  by  Sir  William  Jones.  It  comes  to  this,  that 
where  goods  are  delivered  upon  a  contract  for  a  valuable  considera- 
tion, v/hether  in  money  or  monej^'s  worth,  then  the  property  passes. 
It  is  a  sale  and  not  a  bailment.  In  the  case  nf  mixture  bv  consent, 
the  idmititv  of  the  specific  propertv  of  each  who  consents  is  no  longer 

I'Prtf^inf^bl^i  ^Tff^  ^^f  mixpd-prfpp'rfY  bp]f}]iffs  to  a.l[  m  (JOmilloii. 
^t  may  perhaps  be  regarded,  under  special  circumstances,  as  the 
case  of  i>orsons  having  a  common  property,  and  if  thej-  all  concur  in 
a  bailment  of  this  property,  all  may  require  a  redelivery  of  what 
they  have  so  put  in  bailment.  It  may  be  that  in  sucli  a  case  each 
might  claim  separately  to  have  an  aliquot  part  of  the  whole  restored 
to  him;  but  here  the  current  stock  was,  from  its  very  nature,  liable^" 
to  be  changed  from  day  to  day,  both  in  quantity  and  quality.  The 
delivery  was  not  for  the  peculiar  or  primary  purpose  of  storage 
sim.pliciter,  as  in  the  case  of  a  bailment  of  property  to  be  returned 
to  one  bailor,  or  of  any  part  to  one  or  more  of  several  joint  bailors; 
but  the  wheat  was  delivered  by  each  farmer  independently,  to  be 
stored  and  used  as  part  of  the  current  stock  or  capital  of  the  miller's 
trade.  There  seems  to  be  no  ground  upon  which  a  banker  is  held 
not  to  be  a  trustee,  or  a  banker's  current  capital  not  to  be  trust 


CHAP.  VIII.]  RICE    V.    NIXON.  225 

property,  that  is  not  applicable  in  principle  to  the  case  of  the  miller 
i,nd  his  current  stock  of  wheat,  which  is  his  trading  capital. 

Therefore,  it  appears  to  their  Lordships,  that  the  description  in 
the  proposal  and  in  the  policy  is  a  correct  and  honest  description 
of  the  subject  of  the  insurance.  As  the  question  reserved  at  the  trial 
was,  whether  the  wheat  taken  in  storage  should  be  considered  as 
trust  property,  within  the  terms  of  the  conditions  of  the  policy, 
and  as  their  Lordships  think  that  it  should  not  be  so  considered, 
they  will  humbly  advise  Her  Majesty  that  the  order  of  the  court 
below,  discharging  the  rule  m'si  to  set  aside  the  verdict,  ought  to 
be  afl&rmed  and  the  appeal  dismissed  with  costs. 


RICE   V.   NIXON. 

97  Ind.  97.     1884. 

Elliott,  C.J.  —  The  appellee  was  a  warehouseman,  and  it  was 
his  custom  to  receive  wheat  on  deposit  and  to  place  it  in  a  common 
bin  with  wheat  bought  by  him,  and  it  was  also  his  custom  to  sell 
wheat  from  this  bin,  but  of  this  custom  the  appellants  had  no  knowl- 
edge. In  xVugust,  1882,  the  appellant  Victoria  Rice  deposited  with 
the  appellee  two  hundred  and  ten  bushels  of  wheat;  this  was  thrown 
into  the  common  bin  in  accordance  with  the  custom  of  the  appellee, 
and  vnth  it  was  mingled  wheat  bought  by  him  and  wheat  stored  by 
other  depositors,  and  from  this  bin  wheat  was  sold,  from  time  to 
time,  but  there  was  always  in  the  bin  wheat  enough  to  supply  all 
depositors,  and  at  any  time  before  the  destruction  of  the  warehouse 
by  an  accidental  fire  the  appellant  could  have  received  from  the  bin 
all  the  wheat  she  had  deposited.  Some  time  after  the  storage  of  the 
wheat  the  warehouse  and  all  its  contents  were  destroyed  by  fire,  but 
the  fire  was  not  attributable  to  the  wrong  or  negligence  of  the 
appellee.  No  demand  was  made  for  the  wheat  until  after  its  destruc- 
tion. The  wheat  was  stored  wdth  the  appellee,  and  there  was  no 
agreement  that  the  bailor  should  have  an  option  to  demand  the 
grain  or  its  value  in  money. 

There  are  cases  in  which  a  bailee  is  responsible  for  the  loss  of  goods 
where  he  commingles  them  mth  his  oa\ti,  but  this  principle  does  not 
apply  where  a  warehouseman  receives  grain  to  be  stored  for-  the 
owner.  Articles  of  such  a  character  can  be  separated  by  measure- 
ment, and  no  injury  result  to  the  o\\Tier  from  the  act  of  the  ware- 
houseman in  mingling  them  with  like  articles  of  his  own.  This  doc- 
trine is  older,  at  least,  than  Lwpton  v.  White,  15  Vesey  Jr.  432,  for 
there  Lord  Eldon  said:  "What  are  the  cases  in  the  old  law  of  a  mix- 
ture of  corn  or  flour?  If  one  man  mixes  his  corn  or  flour  with  that 
of  another,  and  they  were  of  equal  value,  the  latter  must  have  the 


226  RICE  V.  NIXON.  [chap.  viii. 

given  quantity;  but,  if  articles  of  different  value  are  mixed,  produc- 
ing a  third  value,  the  aggregate  of  both,  and  through  the  fault  of 
the  person  mixing  them,  the  other  party  can  not  tell  what  was  the 
original  value  of  his  property,  he  must  have  the  whole."  Chancellor 
Kent  takes  a  like  view  of  the  question,  and  his  last  editor,  Judge 
Holmes,  cites  a  great  many  cases  upon  the  subject.  2  Kent  Com. 
(12th  ed.)  365,  590.  This  is  the  view  taken  by  the  text-^sTiters  and 
courts  generally  in  cases  where  the  deposit  is  made  with  a  warehouse- 
man. Story  Bail.,  section  40;  Law  of  Prod.  Ex.,  section  152; 
2  Schouler  Pers.  Prop.,  section  46;  6  Am.  L.  Rev.  457;  2  Blackstone 
Com.,  Cooley's  ed.,  404,  n.  There  is,  however,  as  shown  by  the  cases 
cited,  some  conflict  of  opinion,  but,  as  said  in  a  late  work,  the  great 
weight  of  authority  is  that  the  contract  is  one  of  bailment  and  not 
of  sale,  the  warehouseman  and  the  depositor  becoming  owners  as 
tenants  in  common.   Law  of  Prod.  Ex.,  section  154,  auth.  n.  9. 

To  the  authorities  cited  by  the  authors  referred  to  may  be  added 
Ledijard  v.  Hibhard,  48  Mich.  421;  s.  c.  42  Am.  R.  474;  Nelson  v. 
Brown,  44  Iowa,  455;  Sexton  v.  Graham,  53  Iowa,  181;  Nelson  v. 
Brown,  53  Iowa,  555;  Irons  v.  Kentner,  51  Iowa,  88;  s.  c.  33  Am.  R. 
119,  where  the  rule  is  carried  much  farther  than  is  necessary  in  the 
present  instance.  The  rule  which  we  accept  as  the  true  one  is  required 
by  the  commercial  interests  of  the  country,  and  is  in  harmony  with 
the  cardinal  principle  that  the  intention  of  contracting  parties  is 
always  to  be  given  effect.  It  is  not  unknown  to  us,  nor  can  it  be 
unknown  to  any  court,  for  it  is  a  matter  of  great  public  notoriety 
and  concern,  that  a  vast  part  of  the  grain  business  of  the  country  is 
conducted  through  the  medium  of  elevators  and  warehouses,  and 
it  cannot  be  presmned  that  warehousemen  in  recei^dng  grain  for 
storage,  or  depositors  in  entrusting  it  to  them  for  that  purpose, 
intended  or  expected  that  each  lot,  whether  of  many  thousand 
bushels,  or  of  a  few  hundred,  should  be  placed  in  separate  receptacles; 
on  the  contrary,  the  com*se  of  business  in  this  great  branch  of  com- 
merce, made  known  to  us  as  a  matter  of  public  knowledge  and  by 
the  decisions  of  the  courts  of  the  land,  leads  to  the  presumption  that 
both  the  warehouseman  and  the  depositor  intended  that  the  grain 
should  be  placed  in  a  common  receptacle  and  treated  as  common 
property.  This  rule  secures  to  the  depositor  all  that  in  justice  he 
can  ask,  namely,  that  his  grain  shall  be  ready  for  him  in  kind  and 
quantity  whenever  he  demands  it.  Any  other  rule  would  impede 
the  free  course  of  commerce  and  render  it  practically  impossible  to 
handle  our  immense  crops.  It  is  reasonable  to  presume  that  the 
warehouseman  and  his  depositor  did  not  intend  that  the  course  of 
business  should  be  interrupted,  and  that  they  did  not  intend  that 
the  almost  impossible  thing  of  keeping  each  lot,  small  or  great,  apart 
from  the  common  mass  should  be  done  by  the  warehouseman.  If 
the  warehouseman  is  not  bound  to  place  grain  in  a  separate  place 


CHAP.  VIII.]  RICE    V.    NIXON.  227 

for  each  depositor,  then  the  fact  that  he  puts  it  in  a  common  recept- 
acle with  grain  of  his  o^^^^  and  that  of  other  depositors,  does  not  make 
him  a  purchaser,  and  if  he  is  not  a  purchaser,  then  he  is  a  bailee.  In 
all  matters  of  contract  the  intention  of  the  parties  gives  character 
and  effect  to  the  transaction,  and  in  such  a  case  as  this  the  circum- 
stances declare  that  the  intention  was  to  make  a  contract  of  bail- 
ment and  not  a  contract  of  sale.  The  duties,  rights  and  liabilities  of 
warehousemen  are  prescribed  by  the  law  as  declared  by  the  courts 
and  the  Legislature,  and  as  matter  of  law  it  is  knowm  to  us  that 
a  warehouseman,  by  placing  grain  received  from  a  depositor  in 
a  common  receptacle,  and  treating  it  as  the  usages  of  trade  war- 
rant, does  not  become  the  buyer  of  the  grain,  unless,  indeed,  there 
is  some  stipulation  in  the  contract  imposing  that  character  upon 
him. 

The  cases  in  our  own  reports,  cited  by  counsel  for  the  appellants, 
do  not  oppose  the  conclusion  here  reached.  In  Pribble  v.  Kent,  10 
Ind.  325,  the  defendants  received  of  the  plaintiff  one  hundred  and 
thirty-two  bushels  of  grain,  and  on  demand  failed  to  deliver  the 
wheat,  and  it  was  held  that  an  action  would  lie,  but  the  contract  was 
held  to  be  one  of  bailment,  and  not  of  sale.  It  is  plain,  therefore, 
that  in  the  case  cited  there  was  no  such  ruling  as  that  asked  by  the 
appellants  in  the  present  case;  on  the  contrary,  the  ruling  overturns 
their  theory.  In  Ewing  v.  French,  1  Blaclcf.  353,  and  Carlisle  v. 
Wallace,  12  Ind.  252,  the  wheat  was  delivered  to  a  miller  to  be 
ground  into  flour,  and  this  was  held  to  be  a  sale,  on  the  ground  that 
the  character  of  the  article  was  to  be  entirely  changed,  and  a  new 
and  different  article  was  to  be  given  by  the  miller  to  his  customer  in 
return  for  the  wheat.  In  the  last  of  the  cases  cited  the  option  of 
demanding  wheat,  flour  or  money  was  vested  in  the  depositor,  so 
that  he  had  the  option  of  making  the  contract  one  of  bailment  or 
one  of  sale,  and  he  exercised  that  option  by  treating  the  transaction 
as  a  sale.  In  the  case  under  examination  there  was  no  option,  for 
it  is  expressly  found  that  the  wheat  was  received  by  the  warehouse- 
man for  storage.  The  case  of  Ashhy  v.  ¥/est,  3  Ind.  170,  holds  that 
one  who  delivers  wheat  to  be  manufactured  into  flour  is  the  owner 
of  the  flour,  and  may  maintain  replevin,  the  court  saying:  "We  are 
clearly  of  the  opinion  that  that  contract  is  one  of  bailment,  and  not  of 
sale,"  and  this  is  against  the  contention  of  the  appellants. 

In  deciding  that  the  contract  was  one  of  bailment,  and  not  of  sale, 
we  determine  the  only  debatable  question  in  the  case,  for  it  has  been 
long  settled  that  where  property  in  the  custody  of  a  bailee  is  de- 
stroyed by  an  accidental  fire,  and  there  has  been  no  fault  or  negli- 
gence on  his  part,  he  is  not  lia])le. 

We  have  examined  the  rulings  on  the  demurrers  to  the  answers 
and  think  they  were  correct;  but  if  we  were  \vrong  in  this  there  could 
be  no  reversal,  because  the  special  finding  clearly  shows  the  ground 


228  SEXTON    V.    GRAHAM.  [CHAP.  VIII. 

on  which  the  judgment  rests,  and  from  this  it  appears  that  if  thf 
rulings  were  erroneous  the  errors  were  harmless. 

Judgment  affirmed. 


SEXTON   V.   GRAHAM. 

53  Iowa,  181.     1880. 

Adams,  Ch.  J.  The  first  question  to  be  determined  is  as  to 
whether  the  transaction,  in  pursuance  of  which  the  receipts  were 
issued  to  plaintiffs  by  Graham,  was  a  sale  by  them  to  him.  Of  course, 
if  the  grain  had  been  specially  deposited,  that  is,  with  the  agreement 
or  understanding  that  it  should  be  kept  separate  from  all  other  grain, 
no  question  could  have  arisen.  It  would  be  conceded  by  the  appel- 
lant that  the  transaction  would  have  been  a  bailment  and  not  a 
sale.  But  the  receipt  expressly  pro\ided  that  the  grain  might  be 
stored  with  other  grain  of  the  same  kind  and  grade,  the  conceded 
meaning  of  which  is  that  the  grain  might  be  mixed  with  other  grain 
of  the  same  kind  and  grade  in  a  common  mass.  Now,  while  the  ap- 
pellant contends  that  this  is  a  most  important  fact,  it  does  not 
contend  that  this  fact  alone  would  necessarily  make  the  transac- 
tion a  sale.  Where  a  warehouseman  merely  receives  grain  from 
several  depositors,  with  the  understanding  that  it  may  be  mixed  in  a 
common  mass,  and  it  is  so  mixed,  the  transaction  is  a  bailment, 
and  the  depositors  are  tenants  in  common.  Gushing  v.  Breed,  14 
Allen,  380.  But  it  is  said  that  where  the  warehouseman  is  himself 
a  depositor,  and  it  is  understood  by  the  other  depositors  that  their 
grain  is  to  be  mixed  with  his,  with  the  right,  on  his  part,  to  draw 
from  the  mass  to  the  amount  of  his  deposit,  then  the  depositors  do 
not  become  tenants  in  common,  but  the  title  to  all  the  grain  passes 
at  once,  upon  deposit,  to  the  warehouseman.  In  support  of  this  view, 
the  appellant  cites  S&uth  Australian  Ins.  Co.  v.  Randall,  Law  Rep., 
3  Privy  Council  Appeals,  101;  Chase  v.  Washburne,  1  Ohio  St.  244; 
Norton  v.  Woodruff,  2  Coms.  155;  Carlisle  v.  Wallace,  12  Ind.  252; 
Smith  V.  Clarke,  21  Wend.  84;  Hurd  v.  West,  7  Cow.  752;  Lornegan 
V.  Stewart,  55  111.  45;  Wilson  v.  Cooper,  10  Iowa,  565;  Johnston  v. 
Browne,  37  Iowa,  200.  It  is  claimed  by  appellant,  and  we  think  the 
evidence  so  shows,  that  at  the  time  of  the  transaction  in  question 
Graham  was  depositing,  upon  his  own  account,  grain  in  his  ware- 
house or  elevator  in  common  mass,  and  shipping  therefrom,  and  that 
the  plaintiffs  knew  it.  We  have  then  the  question  whether,  such 
being  the  fact,  the  title  to  plaintiffs'  grain  under  their  receipts  passed 
to  Graham. 

It  is  a  common  thing,  we  believe,  for  proprietors  of  elevators  to 
employ  them  for  the  deposit  of  their  own  grain,  if  they  have  any,  in 


CHAP.  VIII.]  SEXTON    V.    GRAHAM.  229 

common  mass  with  others'  grain.  Depositors,  we  think,  generally 
know  this,  and  consent  that  their  grain  may  be  mixed  not  only  with 
^ain  belonging  to  third  persons,  but  with  grain  belonging  to  the 
oroprietor,  if  he  should  have  any.  This  mode  of  doing  business  seems 
;0  be  demanded  by  considerations  of  economy.  Now  we  are  asked 
to  hold  that  such  depositors  lose  title  to  their  grain  immediately 
upon  its  being  deposited,  and  that  the  receipts  issued  to  them, 
though  expressly  calling  for  grain,  are  no  evidence  of  a  claim  for 
grain,  but  at  best  are  merely  evidence  of  a  claim  for  money,  and  are 
good  or  otherwise,  according  as  the  maker  is  or  is  not  responsible. 
It  is  contended  that  such  deposits  of  grain  are  like  general  bank 
deposits  of  money.  In  our  opinion,  however,  there  is  a  very  impor- 
tant difference.  In  case  of  a  general  bank  deposit  it  is  understood  that 
the  bank  will  use  it  in  its  own  way.  It  is  from  the  use  of  deposits  that 
the  bank  is  to  receive  its  compensation  for  receiving  the  deposits  and 
accounting  for  the  same.  It  is  true  that  as  grain  has  a  definite  and 
well-recognized  market  value  it  would  not,  ordinarily,  make  much 
difference  to  the  receipt  holder  whether  he  received  the  grain  which 
his  receipt  called  for,  or  was  paid  its  market  value  in  cash.  But  the 
rule  contended  for  would  make  a  great  difference  in  the  safety  of  the 
receipt  holder.  In  our  opinion  it  cannot  be  sustained  either  upon 
principle  or  authority.  The  cases  above  cited  as  relied  upon  by  appel- 
lant's counsel  are  none  of  them  in  point.  In  all  of  them  there  was 
enough  in  the  receipts,  or  in  the  circumstances,  or  both,  to  evince  an 
understanding  upon  the  part  of  the  depositor  that  the  warehouse- 
man should  have  a  right  to  sell  the  thing  deposited  upon  his  own 
account,  or  otherwise  appropriate  it  to  his  own  use.  Such  an  under- 
standing does  not  exist  upon  the  part  of  grain  receipt  holders  by 
reason  of  a  mere  agi'eement  that  the  warehouseman  may  mix  his 
own  grain  with  theirs  and  draw  out  and  sell  the  same  amount.  In 
such  case  the  warehouseman  becomes  a  tenant  in  common  like  any 
other  depositor,  and  may  be  permitted  to  enjoy  the  same  right  of 
severance  without  affecting  the  title  of  his  co-tenants. 

Note.  —  In  Johnston  v.  Browne,  37  Iowa,  200,  it  was  shoMTi  that 
it  was  the  custom  of  the  warehouseman  always  to  keep  on  hand  a 
sufficient  amount  of  grain  of  the  same  quality  as  that  stored  to  meet 
all  outstanding  storage  receipts,  and  the  transaction  was  held  to  be 
a  sale.  But  it  is  not  plain  from  the  opinion  that  the  court  considered 
this  custom  to  have  been  incorporated  into  the  contract  between 
the^depositor  and  the  warehouseman. 

is  submitted  that,  whenever  the  warehouseman  has  obligated 

imself  to  keep  on  hand  sufficient  grain  to  meet  all  outstanding 

receipts,  he  should  be  deemed  a  bailee,  and  not  a  vendee;  under  such 

circumstances,  the  depositor  has  not  intended  to  part  Avith  his  right 

in  rem,  and  to  accept  a  right  in  personam  in  lieu  thereof^ 


230  LEDYARD    V.    HIBBARD.  [CHAP.  VIII. 

LEDYARD  v.   HIBBARD. 

48  Mich.  421.     1882. 

CooLEY,  J.  Replevin  for  a  quantity  of  wheat.  The  following  facts 
were  developed  on  the  trial : 

The  fiiin  of  Hibbard  &  Graff,  composed  of  Wellington  Hibbard 
and  Peter  Graff,  Jr.,  were  merchant  millers  in  Grand  Rapids,  owTiing 
and  operating  two  mills,  known  respectively  as  the  Crescent  and  the 
Valley  City.  With  each  mill  was  an  elevator  in  which  they  stored 
wheat  for  their  own  purposes,  and  also  received  and  stored  for 
farmers  and  others.  Plaintiff,  from  time  to  time,  from  March,  1878, 
to  March,  1880,  delivered  to  them  wheat  which  they  received  into 
their  elevators.  The  manner  of  doing  the  business  was  as  follows: 
The  wheat  was  drawm  from  the  plaintiff's  farai  in  wagons,  discharged 
into  the  weighing  hopper  and  elevated  into  the  mills,  where  it  was 
deposited  in  bins  with  other  wheat  of  like  kind  and  quality.  A  slip  or 
ticket  specifying  the  weight  of  the  load  was  delivered  to  the  driver  of 
the  team,  and  when  a  sufficient  number  of  these  were  gotten  together 
the  plaintiff  surrendered  them  to  the  firm,  and  received  in  lieu  a 
receipt  on  a  printed  blank.  The  receipts  taken  were  all  of  the  same 
form,  and  t  he  following  is  a  copy  of  one  of  them : 

"No.  96.  820  bus.  Crescent  Mills. 

Grand  Rapids,  Mich.,  March  26,  1878. 
Received  of  William  B.  Ledyard  by  L.  Byrne  820  bushels  number 
One  wheat  at  owner's  risk  from  elements,  at  10  cents  less  Detroit 

quotations  for  same  grade  when  sold  to  us.  Stored  for days. 

Hibbard  &  Graff." 

The  wheat  was  all  stored  with  plaintiff's  knowledge  in  bins,  from 
which  the  firm  drew  from  da}'  to  day  for  the  purposes  of  their  busi- 
ness and  manufacture.  The  quantity  in  the  bins  changed  from  day 
to  day  as  it  was  depleted  by  drafts  and  replenished  by  new  deposits. 
No  storage  was  ever  charged,  and  the  dealings  between  the  parties 
remained  entirely  unsettled  and  open  until  the  failure  of  Hibbard  & 
Graff  in  March,  1880.  Plaintiff,  according  to  his  evidence,  then 
demanded  his  wheat,  and  failing  to  obtain  it  brought  this  suit.  The 
defendants  undertook  to  show  that  he  demanded  not  the  wheat  but 
the  price  of  it;  but  on  this  point  the  verdict  of  the  jury  was  against 
them. 

Upon  the  facts  the  question  of  law  is  presented  whether  the 
receipts  which  the  plaintiff  took  from  the  firm  evidenced  a  sale  or  a 
bailment.  If  the  wheat  was  sold  to  Hibbard  &  Graff  when  it  was 
delivered  to  them,  it  was  not  pretended  that  this  action  would  lie; 
but  the  plaintiff  contended  that  the  delivery  of  the  wheat  constituted 


CHAP.  VIII.]  LED  YARD    V.    HIBBARD.  231 

a  bailment,  and  that  it  was  at  his  option  afterwards  to  take  the  value 
at  ten  cents  less  than  Detroit  quotations,  or  to  receive  back  the 
wheat  or  an  equal  quantity  of  the  same  kind  and  quality.  Storage 
in  the  elevators  with  other  wheat,  it  was  claimed,  only  makes  the 
plaintiff  owTier  in  common  with  others,  and  he  had  a  right  to  reclaim 
his  own  at  any  time,  so  long  as  the  requisite  quantity  remained.  The 
defendants,  on  the  other  hand,  contended  that  the  case  differed 
radically  from  the  ordinary  case  of  the  storage  of  grain  in  elevators. 
The  wheat  deposited  in  this  case  became  part  of  a  common  stock 
with  the  wheat  of  the  millers  themselves,  and  was  in  their  hands  for 
consumption  in  their  discretion;  the  millers  might  use  and  consume 
as  their  own  the  whole ;  it  was  not  dehvered  to  them  for  the  primary 
purpose  of  storage  simpliciter,  but  in  addition  to  the  bailment  it  was 
with  the  understanding  that  it  might  be  and  would  be  put  into  the 
current  consumable  stock.  And  the  general  proposition  is  asserted 
that  where  grain  is  deposited  with  anj'  person  with  the  understanding 
that  he  may  use  it  on  his  own  account,  and  when  the  depositor  desires 
to  sell,  that  the  other  will  pay  the  highest  price,  or  retm-n  a  like 
quantity  or  quality,  the  transaction,  if  not  an  immediate  sale,  is  a 
sale  at  the  option  of  the  receiver.  Nelson  v.  Brown,  44  Iowa,  455; 
Sexton  V.  Graham,  53  Iowa,  181;  Nelson  v.  Brown,  53  Iowa,  555. 

It  was  agreed  on  both  sides  that  the  "o^mer"  mentioned  in  the 
receipt  must  be  understood  to  be  the  depositor  —  the  plaintiff.  As 
by  the  receipt  the  gi'ain  was  declared  to  be  at  his  risk,  for  the  time 
being,  it  must  have  continued  to  be  at  his  risk  until  some  act  was 
afterwards  done  by  one  party  or  the  other  to  convert  what  at  first 
was  manifestly  a  bailment  into  a  sale.  The  plaintiff  could  not  be 
creditor  for  the  purchase  price  so  long  as  he  remained  o^vTier,  and 
the  receiptors  could  not  be  debtors  for  the  purchase  price  so  long  as 
the  risks  of  accidental  destruction  remained  upon  the  depositor. 
The  depositor  would  convert  the  bailment  into  a  sale  by  notifying 
the  receiptors  of  his  election  to  receive  the  price  fixed  according  to 
the  terms  of  the  contract;  and  the  receiptors,  it  is  claimed,  would 
convert  it  into  a  sale  by  consuming  the  wheat  in  the  regular  course 
of  their  business,'  as  the  parties  must  have  understood  it  was  likely 
they  would  do. 

The  question  now  made  could  not  have  arisen  if  the  warehouse- 
men had  not  been  millers  as  well.  But  unless  the  local  usage,  or  the 
course  of  dealings  between  the  parties  referred  to  further  on,  shall 
be  found  to  affect  the  case,  the  fact  that  the  receiptors  for  the  wheat 
transacted  business  in  the  two  capacities  of  warehousemen  and 
millers,  would  not  be  of  importance,  and  certainly  could  not  affect 
the  construction  of  their  business  contracts.  If  as  warehousemen 
they  gave  warehouse  receipts  for  grain  received  in  store,  the  receipts 
must  be  construed  by  their  terms  and  by  commercial  usage;  in  com- 
mercial circles  they  would  be  understood  to  represent  the  title  to  the 


232  LEDYARD    V.    HIBBARD.  [cHAP.  VIII. 

quantity  of  grain  specified ;  and  though  the  quantity  in  store  might 
fluctuate  from  day  to  day  as  grain  would  be  received  and  delivered 
out,  this  would  not  affect  the  title  of  the  holder  of  receipts,  who 
would  be  at  liberty  to  demand  and  receive  his  proper  quantity  at  any 
time,  if  so  much  remained  in  store.  But  if  the  quantity  in  store  is 
reduced  by  consumption  instead  of  by  shipment  or  sale,  it  is  not 
apparent  that  the  rights  of  the  holder  of  the  receipts  should  be  any 
different.  It  is  true  if  the  wheat  is  all  consumed,  and  the  amount  in 
store  is  not  kept  good  so  that  a  demand  for  the  wheat  can  be  responded 
to,  and  if  the  consumption  is  by  consent  of  the  owner,  express  or 
implied,  the  consumption  under  such  circumstances  may  be  justly 
regarded  as  a  meeting  of  the  minds  of  the  parties  upon  a  sale ;  but  so 
long  as  grain  is  kept  in  store  from  which  the  receipts  may  be  met, 
the  fair  presumption  is  that  it  is  intended  they  shall  be  so  met;  and 
this  presumption  would  only  be  overcome  by  some  act  unequivocal 
in  its  nature. 

The  circuit  judge  instructed  the  jury  that  in  the  absence  of  any 
election  by  the  plaintiff  to  take  the  price,  the  bailment  continued 
so  long  as  any  portion  of  the  wheat  deposited  by  the  plaintiff 
remained  in  store,  and  he  was  entitled  to  take  the  quantity  specified 
in  his  receipts  from  any  that  remained  in  store  's\ith  which  his  own 
wheat  had  been  mingled.  The  judge  may  perhaps  have  erred  in 
attaching  importance  to  the  question  whether  any  portion  of  the 
identical  grain  deposited  by  the  plaintiff  remained  in  store,  but  if  so 
the  error  favored  the  defendants  and  they  cannot  complain  of  it. 

There  are  other  questions,  however,  arising  upon  an  offer  of  defend- 
ants to  show  a  local  usage,  in  the  light  of  which  thej^  claim  the 
receipts  are  to  be  construed ;  and  also  a  course  of  dealing  between  the 
parties  which  it  is  supposed  will  bear  upon  the  construction.  The 
evidence  upon  these  subjects  was  received  by  the  circuit  judge  pro- 
visionally, but  aftenvards  stricken  out. 

The  evidence  as  to  the  dealings  between  the  parties  was  not  very 
conclusive  in  its  tendency.  Mr.  Hibbard  testified  that  he  had 
received  wheat  from  the  plaintiff  in  the  same  way  ever  since  1874, 
and  that  always  when  the  plaintiff  got  ready  to  sell,  he  called  for  his 
pay  and  received  it.  Every  bailment  thus  became  a  sale.  His  testi- 
mony tended  to  show,  also,  that  Hibbard  &  Graff  were  never  storers 
of  grain  except  for  the  purposes  of  manufacture.  The  plaintiff  him- 
self testified  that  he  never  sold  to  Hibbard  &  Graff  but  twdce;  the 
last  time  being  in  1877.  But  if  the  receipts  which  are  in  e\'idence 
imp/y,  as  we  think  they  do,  an  option  in  the  holder  to  name  his  time 
and  take  the  price,  or  instead  thereof  to  demand  the  wheat,  it  cannot 
be  important  that  under  two  or  many  similar  receipts  the  plaintiff 
had  on  previous  occasions  elected  to  sell.  If  he  found  millers  here 
with  storage  facilities,  and  stored  his  grain  with  them  under  con- 
tracts which  reserved  to  him  an  option,  the  reservation  of  the  option 


CflAP.  VIII.]  LEDYARD    V.    HIBBARD.  233 

implied  that  he  might  on  different  occasions  exercise  it  differently. 
An  option  is  reserved  to  give  that  liberty;  and  however  often  the 
choice  may  be  exercised  the  same  way,  the  liberty  will  still  remain 
while  the  same  contract  continues  to  be  entered  into.  Choosing  alike 
many  times  can  imply  no  promise  or  midei standing  that  the  same 
choice  shall  be  made  always. 

The  evidence  of  local  usage  was  altogether  insufficient  to  establish 
a  custom.  It  was  testified  that  the  millers  of  Grand  Rapids  were 
accustomed  to  receive  wheat  in  their  mills  from  farmers  and  others, 
and  that  the  depositors  called  when  they  pleased  and  took  the 
market  price.  But  there  was  no  evidence  of  any  general  usage  in 
Grand  Rapids  for  the  millers  to  receive  wheat  in  store  and  issue  for 
it  receipts  Hke  those  issued  by  Hibbard  &  Graff  and  which  are  in 
question  here.  The  evidence  on  the  other  hand  rather  tended  to 
show  that  these  receipts  were  in  some  respects  peculiar,  and  espe- 
cially in  the  clause  which  provided  that  the  wheat  should  be  at  the 
owner's  risk.  Usage  can  never  change  the  written  stipulations  of 
parties,  though  it  may  aid  in  the  explanation  of  their  terms,  and 
perhaps  add  incidents  in  respect  to  which  they  are  silent  (Eager  v. 
Atlas  Ins.  Co.,  14  Pick.  141;  Pavey  v.  Burch,  3  Mo.  447;  Farrar  v. 
Stackpole,  6  Me.  154;  Randall  v.  Smith,  63  Me.  105;  s.  c.  18  Am. 
Rep.  200;  Boorman  v.  Jenkins,  12  Wend.  566;  Dawson  v.  Kittle,  4 
Hill,  107;  Erunn  v.  Clark,  13  Mich.  10;  A^.  Y.  Iron  Mine  v.  Citizens' 
Bank,  44  Mich.  345) ;  and  the  requirement  that  it  shall  be  certain, 
definite,  uniform  and  notorious  is  imperative.  Kendall  v.  Russell, 
5  Dana,  501;  Parrott  v.  Thacher,  6  Pick.  426;  Thwing^.  Great  Western 
Ins.  Co.,  Ill  Mass.  109.  "Doubt  must  be  wholly  eliminated  from 
the  evidence  adduced,  or  the  usage  is  not  well  proved."  Adams  v. 
Pittsburg  Ins.  Co.,  76  Penn.  St.  411,  414.  This  general  principle  is 
illustrated  by  numerous  cases,  among  which  are  Whit)iey  v.  Ocean 
Ins.  Co.,  14  La.  485;  s.  c.  33  Am.  Dec.  598;  Pation  v.  Magrath,  Dudleyj 
159;  s.  c.  31  Am.  Dec.  552;  Touro  v.  Cassin,  1  Nott  &  McC.  173; 
s.  c.  9  Am.  Dec.  680;  Walls  v.  Bailey,  49  N.Y.  464;  Harris  v.  Tu7n- 
hridge,  83  N.Y.  92;  Isham  v.  Fox,  7  Ohio  St.  321;  Harper  v.  Pound, 
10  Ind.  32;  Lamh  v.  Klaus,  30  Wis.  94;  Hinton  v.  Coleman,  45  Wis. 
165;  Kilgore  v.  Bulkley,  14  Conn.  390;  Bissell  v.  Ryan,  23  111.  566; 
Leggat  v.  Sands  Ale  Co.,  60  111.  158;  Walsh  v.  Mississippi  &c.  Co., 
52  Mo.  434;  O&er  v.  Carson,  62  Mo.  209;  Smith  v.  Gihbs,  44  N.H.  335; 
McMasters  v.  Railroad  Co.,  69  Penn.  St.  374;  Potts  v.  Aechteriunacht, 
93  Penn.  St.  138. 

The  jury  gave  their  verdict  for  the  plaintiff  under  instructions 
which  were  unexceptionable,  and  the  judgment  in  his  favor  must  be 
affirmed  with  costs. 


BOOK  III. 
LIENS  AND  PLEDGES. 


CHAPTER  I. 
ACQUISITION  AND  ENFORCEMENT. 

A.  Specific  Liens. 


SKINNER  V.   UPSHAW. 

2  Ld.  Raym.  752.     1702. 

The  plaintiff  brought  an  action  of  trover  against  the  defendant, 
being  a  common  carrier,  for  goods  delivered  to  him  to  carry,  etc. 
Upon  not  guilty  pleaded,  the  defendant  gave  in  evidence,  that  he 
offered  to  deliver  the  goods  to  the  plaintiff,  if  he  would  pay  him  his 
hire;  but  that  the  plaintiff  refused,  etc.,  and  therefore  he  retained 
them.  And  it  was  ruled  by  Holt,  chief  justice,  at  Guildhall  (the 
case  being  tried  before  him  there)  May  12,  1  Ann.  reg.  1702,  that  a 
carrier  may  retain  the  goods  for  his  hire;  and  upon  direction,  the 
defendant  had  a  verdict  given  for  him. 


THOMPSON   V.   LACY. 

3  B.  &  Aid.  283.     1820. 

Trover  for  goods.  Plea,  not  guilty.  At  the  trial  before  Abbott, 
C.J.,  at  the  London  sittings  after  last  Trinity  term,  it  appeared  the 
defendant  kept  a  house  of  public  entertainment,  called  The  Globe 
Tavern  and  Coffee  House,  in  Fare  Street,  Moorgate,  where  he  pro- 
vided lodging  and  entertainment  for  travellers  and  others.  No 
stage  coaches  or  waggons  stopped  there,  nor  were  there  any  stables 
belonging  to  the  house.  The  plaintiff,  in  December,  1818,  having  lived 
before  that  time  in  furnished  lodgings  in  London,  went  to  the  defend- 
ant's house  and  engaged  a  bed;  he  continued  to  reside  there  for 
several  months,  and  then  left  the  place.  The  defendant,  in  his  bill, 
charged  for  eighty-three  nights'  lodging;  and  claimed  to  detain  the 
goods  mentioned  in  the  declaration,  on  account  of  money  due  to 


CHAP.  I.]  BEVAN  V.    WATERS.  235 

him  for  lodging  and  entertainment  provided  for  the  plaintiff.  Upon 
these  facts,  the  Lord  Chief  Justice  was  of  opinion,  that  the  defendant 
had  a  Hen  upon  the  goods,  and  the  plaintiff  was  nonsuited. 

Abbott,  C.J.  The  defendant  in  this  case  keeps  a  house,  where  he 
furnishes  beds  and  provisions  to  persons  in  certain  stations  of  life, 
wTio  may  think  fit  to  apply  for  them.  I  do  not  know  that  an  inn- 
keeper can  do  more;  for  he  does  not  absolutely  engage  to  receive 
every  person  who  comes  to  his  house,  but  only  such  as  are  capable  of 
paying  a  compsnsation  suitable  to  the  accommodation  provided. 
Now  it  appears  to  me,  that  the  defendant  cannot  be  distinguished 
from  a  person  who  keeps  an  inn  in  the  country,  in  the  way  of  travel- 
lers. We  should  otherwise  be  obliged  to  say,  that  a  person  who 
arrives  at  a  house  of  public  entertainment  in  a  post-chaise,  and 
desires  to  have  his  supper  and  bed,  meaning  to  go  away  on  the  fol- 
lowing morning,  would  be  a  traveller,  and  that  the  landlord  who 
gave  him  the  accommodation  required,  would  be  an  innkeeper:  and 
yet  that  if  such  a  guest  then  removed  to  the  defendant's  house,  the 
latter,  although  he  should  give  hun  the  same  accommodation,  would 
not  be  an  innkeeper.  Such  a  distinction  would  lead  to  a  very  nice 
enquiry  in  each  particular  case.  It  seems  to  me,  therefore,  that  it 
would  be  better,  both  for  the  persons  who  keep  such  houses  and  for 
those  who  frequent  them,  that  we  should  consider  this  house  as 
falling  ^\dthin  the  rule  of  law  applicable  to  inns.  By  so  deciding,  the 
guest  will  have  the  protection  of  the  law  for  the  security  of  his  goods, 
if  they  are  lost  or  stolen,  and  the  person  who  keeps  the  house  will 
also  have  the  benefit  of  the  law,  which  allows  him  to  retain  the  goods 
of  his  guest  to  insure  the  pajinent  of  his  demand.  I  am  now  speaking 
of  a  case  where  the  party  was  in  the  habit  of  sleeping  in  the  house. 
As  I  cannot,  therefore,  distinguish  a  house  like  that  of  the  defendant, 
who  furnishes  every  accommodation  to  all  persons  for  a  night  or 
longer,  from  a  country  inn,  I  think  that  the  nonsuit  was  right,  and 
that  this  rule  must  be  discharged. 


BEVAN   V.   WATERS. 

Moo.  &  Mai.  235.     1828. 

Best,  C.J.  The  question  in  the  cause  was,  whether  the  defendant 
was  liable  to  the  plaintiff  for  the  training  of  a  race-horse,  which  the 
defendant  had  bought  of  a  third  person,  whilst  in  the  plaintiff's 
possession,  and  which  had  been  given  up  to  the  defendant,  under  an 
agreement,  as  was  contended,  to  pay  for  the  training,  in  consideration 
of  the  abandonment  of  the  plaintiff's  Hen.  The  defendant  contended 
that  there  was  no  lien,  and  the  detention  was  altogether  wrongful, 
under  the  authority  of  Wallace  v.  Woodgate,  R.  &  M.  N.  P.  C.  193. 


236  JACKSON    V.    CUMMINS.  [CHAP.  I. 

It  was  certainly  held  in  that  case,  on  the  authority  of  Yorke  v. 
Grenaugh,  2  Lord  Raymond,  866,  that  a  livery-stable  keeper  has  no 
lien;  but  this  case  goes  farther,  and  on  the  principle  of  the  common 
law,  that  where  the  bailee  expends  labour  and  skill  in  the  improve- 
ment of  the  subject  delivered  to  him,  he  has  a  lien  for  his  charge,  I 
think  the  trainer  has  a  lien  for  the  expense  and  skill  bestowed  in 
bringing  the  horse  into  condition  to  run  at  races. 

Verdict  for  the  plaintiff. 


JACKSON   V.    CUMMINS. 

5  M.  &  W.  342.     1839. 

Trespass  for  breaking  and  entering  an  outhouse  and  premises 
belonging  to  the  plaintiff,  and  seizing  and  driving  away  ten  cows, 
the  property  of  the  plaintiff,  and  converting  and  disposing  of  the 
5ame  to  the  defendants'  owti  use,  etc. 

The  defendants  pleaded,  first,  not  guilty;  secondly,  as  to  taking, 
etc.,  two  of  the  cows,  that  the  said  cows,  for  the  space  of  eight 
months  before  the  said  time  when,  etc.,  had  been  depastured, 
agisted,  and  fed  by  the  defendant  Charles  Cummins  for  the  plaintiff, 
in  and  upon  certain  lands  of  him  the  said  Charles  Cummins,  at  the 
request  of  the  plaintiff,  for  a  certain  reward  and  remuneration  to  be 
paid  the  said  Charles  Cmnmins  by  the  plaintiff,  and  there  was  and 
still  is  due  and  owing  to  the  said  C.  Cummins  from  the  plaintiff  the 
sum  of  16Z.  5s.,  for  and  in  respect  of  the  said  agistment  of  the  said 
two  cows :  and  that  it  was  agreed  between  the  plaintiff  and  defendant 
Charles  Cummins,  that  the  said  C.  Cummins  should  retain,  have, 
and  take  and  keep  the  possession  of  the  said  two  cows  so  long 
as  the  said  sum  of  161.  5s.  should  remain  unpaid :  that  the  said 
two  cows  then  and  at  the  time  of  the  said  agi-eement  were  in  the 
possession  of  the  said  C.  Cummins,  and  so  remained  mitil  the 
plaintiff  fraudulently,  milawfully,  and  wrongfully  took  them  out 
of  the  same  as  hereinafter  mentioned ;  that  aftenvards,  and  after  the 
said  agreement,  and  whilst  the  said  two  cows  were  in  the  possession 
of  the  said  C.  Cummins  under  the  same,  and  whilst  the  said  C. 
Cummins  had  a  lien  upon  the  same  by  law  and  by  the  agreement 
aforesaid,  and  just  before  the  said  time  when,  etc.,  the  plaintiff 
wrongfully,  unlawfully,  and  surreptitiously,  and  contrary  to  the 
said  agreement,  with  force  and  arms,  broke  and  entered  the  said 
close  of  the  said  C.  Cummins  in  which  the  said  two  cows  were 
depasturing  and  agisting  as  aforesaid,  and  wrongfully,  fraudulently, 
unjustly,  and  unlawfully  took,  carried,  and  drove  away  the  same  out 
of  the  said  close  of  the  said  C.  Cummins,  and  put  and  placed  the 
same  in  the  said  outhouse  and  premises  in  the  declaration  mentioned, 


CIL^P.  I.]  JACKSON    V.    CUMMINS.  237 

without  paj-ing  the  said  sum  so  agreed  to,  and  then  due  to  the  said 
C.  Cummins.  The  plea  concluded  with  a  justification  by  the  defend- 
ant Cummins  in  his  own  right,  and  by  the  other  defendants  as  his 
servants,  in  peaceably  entering  the  outhouse  and  premises,  in  order 
to  retake  the  cattle,  and  retaldng  them  accordingly. 

The  plaintiff  took  issue  on  the  first  plea,  and  to  the  second  replied 
de  injuria. 

The  cause  was  tried  before  Parke,  B.,  at  the  last  Assizes  for  York- 
shire, when  it  was  proved  that  the  cows  had  been  depastui'ed  on 
land  belonging  to  the  defendant.  The  jury  found  that  there  was  no 
such  agreement  as  stated  in  the  plea,  that  the  defendant  should 
retain  and  keep  possession  of  the  cows  until  the  amount  due  for 
the  pasturage  was  paid,  and  thereupon  found  a  verdict  for  the  plain- 
tiff, the  learned  judge  reserving  leave  to  the  defendant  to  move  to 
enter  a  nonsuit,  in  case  the  court  should  be  of  opinion  that  a  lien 
existed  at  common  law  for  the  agistment  of  cattle.  Alexander 
obtained  a  rule  accordingly. 

Parke,  B.  I  am  of  opinion  that  this  rule  ought  to  be  discharged. 
The  first  question  is,  whether  it  was  competent  for  the  defendant, 
under  this  plea,  which  speaks  of  a  lien  by -agreement,  to  set  up  a 
claim  for  a  lien  at  common  law?  If  it  were  necessary  to  decide  that 
question,  I  should  say  that  I  think  it  was  competent  for  him  to  do  so. 
The  plaintiff,  it  is  true,  might  have  demurred  specially  to  the  plea 
for  duplicity,  in  setting  up  two  distinct  grounds  of  lien,  viz.  by  force 
of  an  agreement,  and  by  the  general  law;  but  as  it  is,  the  averment 
of  the  agreement  for  a  lien  may  be  rejected,  and  the  claim  of  lien 
under  the  general  law  supported,  should  such  really  exist.  I  also 
think  that,  after  the  recent  decision  in  Owen  v.  Knight,  4  Bing. 
N.C.  54;  5  Scott,  307,  as  to  the  effect  of  lien  in  actions  of  trover, 
the  defendant  would  have  done  better  to  have  pleaded  that  the 
plaintiff  was  not  possessed  of  these  cows;  which  plea  would  havo 
been  supported  by  proof  of  the  lien,  giving  to  the  defendant  a  special 
property  in  them  at  the  time  of  the  trespass.  It  is  not,  however, 
necessary  to  decide  either  of  these  points,  because  I  think  that  by 
the  general  law  no  lien  exists  in  the  case  of  agistment.  The  general 
rule,  as  laid  down  by  Best,  C.J.,  in  Bevan  v.  Waters,  and  by  this 
court  in  Scarfe  v.  Morgan,  is,  that  by  the  general  law,  in  the  absence 
of  any  special  agreement,  whenever  a  party  has  expended  labour 
and  skill  in  the  improvement  of  a  chattel  bailed  to  him,  he  has  a 
lien  upon  it.  Now,  the  case  of  agistment  does  not  fall  within  that 
principle,  inasmuch  as  the  agister  does  not  confer  any  additional 
value  on  the  article,  either  by  the  exertion  of  any  skill  of  his  own,  or 
indirectly  by  means  of  any  instrument  in  his  possession,  as  was  the 
case  with  the  stallion  in  Scarfe  v.  Morgan;  he  simply  takes  in  the 
animal  to  feed  it.  In  addition  to  which,  we  have  the  express  author- 


238  JACKSON   V.    CUMMINS.  [CHAP.  I. 

ity  of  Chapman  v,  Allen,  that  an  agister  has  no  lien;  and  although 
possibly  that  case  may  have  been  decided  on  the  special  ground  that 
there  had  been  an  agreement  between  the  parties,  or  a  conversion 
of  the  animal  had  taken  place,  still  it  is  also  quite  possible  that  it 
might  have  proceeded  on  the  more  general  principle,  that  no  lien 
can  exist  in  the  case  of  agistment ;  and  it  was  so  understood  by  this 
Court  in  Judson  v.  Etheridge.  The  analogy,  also,  of  the  case  of  the 
livery-stable  keeper,  who  has  no  lien  by  law,  furnishes  an  additional 
reason  why  none  can  exist  here;  for  this  is  a  case  of  an  agistment  of 
milch  cows,  and,  from  the  very  nature  of  the  subject-matter,  the 
owner  is  to  have  possession  of  them  during  the  time  of  milking; 
which  establishes  that  it  was  not  intended  that  the  agister  was  to 
have  the  entire  possession  of  the  thing  bailed :  and  there  is  nothing  to 
shew  that  the  owner  might  not,  for  that  purpose,  have  taken  the 
animals  out  of  the  field  wherein  they  were  grazing,  if  he  had  thought 
proper  so  to  do.  This  claim  of  lien  is  therefore  inconsistent  with  the 
necessary  enjoyment  of  the  property  by  the  owner.  As  to  the  case 
of  the  training  groom  it  is  not  necessary  to  say  am-thing,  as  it  has 
not  been  formally  decided;  for  in  Jacobs  v.  Latour,  5  Bing.  130;  2  ]\I, 
&  P.  201,  the  point  was  left  undetermined.  It  is  true,  there  is  a  Nisi 
Prius  decision  of  Best-,  C.J.,  in  Bevan  v.  Waters,  that  the  trainer 
would  have  a  lien,  on  the  ground  of  his  having  expended  labour  and 
skill  in  bringing  the  animal  into  condition  to  run  at  races;  but  it 
does  not  appear  to  have  been  present  to  the  mind  of  the  Judge,  nor 
was  the  usage  of  training  to  that  effect  explained  to  him,  that  when 
horses  are  delivered  for  that  purpose,  the  owner  has  always  a  right, 
during  the  continuance  of  the  process,  to  take  the  animal  away  for 
the  purpose  of  running  races  for  plates  elsewhere.  The  right  of  lien, 
therefore,  must  be  subservient  to  this  general  right,  which  overrides 
it;  so  that  I  doubt  if  that  doctrine  would  apply  where  the  animal 
delivered  was  a  race-horse,  as  that  case  differs  much  from  the  ordi- 
nary case  of  training.  I  do  not  say  that  the  case  of  Bevan  v.  Waters 
was  wTongly  decided ;  I  only  doubt  if  it  extends  to  the  case  of  a  race- 
horse, unless  perhaps  he  was  delivered  to  the  groom  to  be  trained  for 
the  purpose  of  running  a  specified  race,  when  of  course  these  obser- 
vations of  mine  would  not  apply.  But,  at  all  events,  I  am  clear  that 
this  agister  has  no  lien,  as  his  case  certainly  does  not  come  within  the 
general  principles  which  have  been  established:  in  addition  to  which, 
such  a  claim  would  be  inconsistent  with  the  more  general  right 
exerciseable  by  the  owner  of  the  cattle. 

Ride  discharged. 

Note.  —  The  student  will  find  an  explanation  of  the  rule  that  an 
agister  has  no  lien  suggested  by  the  late  Dean  Ames  in  2  H.  L  R.  61. 


CHAP.  I.J  STEINMAN    V.    WILKINS.  239 

STEINMAN   V.   WILKINS. 

7  W.  &  S.  (Pa.)  466.     1844. 

The  plaintiff  brought  this  action  of  trover  against  the  defendant, 
who  is  a  warehouseman  in  Clarion  County,  on  the  Allegheny  River, 
for  the  supposed  conversion  of  certain  goods  retained  for  the  price  of 
warehouse  room,  being  part  of  a  larger  lot  which  was  stored  in  his 
warehouse  by  Hamilton  &  Humes,  of  whom  the  plaintiff  is  the 
general  assignee.  The  greater  part  had  been  delivered  to  Hamilton 
&  Humes,  and  the  residue  having  been  demanded  without  tender 
of  any  charges,  M'Calmont  (President  of  the  Common  Pleas  of 
Clarion  County)  directed  the  jury  that  though  the  defendant  could 
not  retain  for  the  general  balance  of  his  account,  he  might  retain  for 
all  the  charges  on  all  the  goods  forwarded  to  him  at  the  same  time. 

The  opinion  of  the  cOurt  was  delivered  by 

Gibson,  C.J.  Though  a  plurality  of  the  barons  in  Rex  v.  Hum- 
phrey, 1  M'Clell.  &  Y.  194r-95,  dissented  from  the  dictum  of  Baron 
Graham  that  a  warehouseman  has  a  hen  for  a  general  balance, 
like  a  wharfinger,  I  do  not  understand  them  to  have  intimated  that 
he  has  no  lien  at  all.  They  spoke  of  it  as  an  entity,  and  seem  to  have 
admitted  that  he  has  a  specific  lien,  though  not  a  general  one.  There 
is  a  well-known  distinction  between  a  commercial  lien,  which  is  the 
creature  of  usage,  and  a  common-law  lien,  which  is  the  creature  of 
policy.  The  first  gives  a  right  to  retain  for  a  balance  of  accounts; 
the  second,  for  services  performed  in  relation  to  the  particular  prop- 
erty. Commercial  or  general  liens,  which  have  not  been  fastened  on 
the  law  merchant  by  inveterate  usage,  are  discountenanced  by  the 
courts  as  encroachments  on  the  common  law;  and  for  that  reason  it 
would  be  impossible  to  maintain  the  position  of  Baron  Graham. 
for  there  is  no  evidence  of  usage  as  a  foundation  for  it,  and  no  text- 
writer  has  treated  of  warehouse  room  as  a  subject  of  lien  in  any 
shape.  In  Rex  v.  Humphrey,  it  was  involved  in  the  discussion  only 
incidentally;  and  I  have  met  with  it  in  no  other  case.  But  there  is 
doubtless  a  specific  lien  provided  for  it  by  the  justice  of  the  common 
law.  From  the  case  of  a  chattel  bailed  to  acquire  additional  value 
by  the  labour  or  skill  of  an  artisan,  the  doctrine  of  specific  lien  has 
been  extended  to  almost  every  case  in  which  the  thing  has  been 
improved  by  the  agency  of  the  bailee.  Yet,  in  the  recent  case  of 
Jackson  v.  Cummins,  5  Mees.  &  Welsh.  342,  it  was  held  to  extend 
no  further  than  to  cases  in  which  the  bailee  has  directly  conferred 
additional  value  by  labour  or  skill,  or  indirectly  by  the  instrumen- 
tality of  an  agent  under  his  control ;  in  supposed  accordance  "^dth 
which  it  was  ruled  that  the  agistment  of  cattle  gives  no  lien.  But  it 
is  difficult  to  find  an  argument  for  the  position  that  a  man  who  fits 
an  ox  for  the  shambles,  by  fatting  it  with  his  provender,  does  not 


210  STEINMAN    V.    WILKINS.  fCHAP.  T 

increase  its  intrinsic  value  by  means  exclusively  within  his  control. 
There  are  certainly  cases  of  a  different  stamp,  particularly  Bevan  v. 
Waters,  Mood.  &  Malk.  235,  in  which  a  trainer  was  allowed  to  retain 
for  fitting  a  race-horse  for  the  turf.  In  Jackson  v.  Cummins  we  see 
the  expiring  embers  of  the  primitive  notion  that  the  basis  of  the  lien 
is  intrinsic  improvement  of  the  thing  by  mechanical  means;  but  if 
we  get  away  from  it  at  all,  what  matters  it  how  the  additional  value 
has  been  imparted,  or  whether  it  has  been  attended  with  an  altera- 
tion in  the  condition  of  the  thing?  It  may  be  said  that  the  condition 
of  a  fat  ox  is  not  a  permanent  one ;  but  neither  is  the  increased  value 
of  a  mare  in  foal  permanent;  yet  in  Scarf e  v.  Morgan,  4  Mees.  & 
Welsh.  270,  the  owner  of  a  stallion  was  allowed  to  have  a  lien  for  the 
price  of  the  leap.  The  truth  is,  the  modern  decisions  evince  a  struggle 
of  the  judicial  mind  to  escape  from  the  narrow  confines  of  the  earlier 
precedents,  but  without  having  as  yet  established  principles  adapted 
to  the  current  transactions  and  convenience  of  the  world.  Before 
Chase  v.  Westmore,  5  Maule  &  Selw.  180,  there  was  no  lien  even  for 
v.'Ork  done  under  a  special  agreement;  now,  it  is  indifferent  whether 
the  price  has  been  fixed  or  not.  In  that  case,  Lord  Ellenborough, 
alluding  to  the  old  decisions,  said  that  if  they  "are  not  supported  by 
law  and  reason,  the  convenience  of  mankind  certainly  requires  that 
our  decisions  should  not  be  governed  by  them;"  and  Chief  Justice 
Best  declared  in  Jacobs  v.  Latour,  5  Bingh.132,  that  the  doctrine  of 
lien  is  so  just  between  debtor  and  creditor,  that  it  cannot  be  too  much 
favoured.  In  Kirkham  v.  Shawcross,  6  T.  R.  17,  Lord  Kenyon  said 
it  had  been  the  wish  of  the  courts,  in  all  cases  and  at  all  times,  to 
carry  the  lien  of  the  common  law  as  far  as  possible;  and  that  Lord 
Mansfield  also  thought  that  justice  required  it,  though  he  submitted 
when  rigid  rules  of  law  were  against  it.  What  rule  forbids  the  lien  of  a 
warehouseman?  Lord  Ellenborough  thought  in  Chase  v.  Westmore, 
that  every  case  of  the  sort  was  that  of  a  sale  of  services  performed  in 
relation  to  a  chattel,  and  to  be  paid  for,  as  in  the  case  of  any  other 
sale,  when  the  article  should  be  delivered.  Now,  a  sale  of  ware- 
house room  presents  a  case  which  is  bound  by  no  pre-established 
rule  or  analogy;  and,  on  the  ground  of  principle,  it  is  not  easy  to 
discover  why  the  warehouseman  should  not  have  the  same  lien 
for  the  price  of  future  delivery  and  intermediate  care  that  a  carrier 
has.  The  one  delivers  at  a  different  time,  the  other  at  a  different 
place;  the  one  after  custody  in  a  warehouse,  the  other  in  a  vehicle; 
and  that  is  all  the  difference.  True,  the  measure  of  the  carrier's 
responsibility  is  greater;  but  that,  though  a  consideration  to  influ- 
ence the  quantum  of  his  compensation,  is  not  a  consideration  to 
increase  the  number  of  his  securities  for  it.  His  lien  does  not  stand 
on  that.  He  is  bound  in  England  by  the  custom  of  the  realm  to  carry 
for  all  emploj'ers  at  established  prices;  but  it  is  by  no  means  certain 
that  our  ancestors  brought  the  principle  with  them  from  the  parent 


CHAP.  I.]  STEINMAN    V.    WILKINS.  241 

country  as  one  suited  to  their  condition  in  a  wilderness.  We  have 
no  trace  of  an  action  for  refusing  to  carry;  and  it  is  notorious  that 
the  wagoners,  who  were  fonnerly  the  carriers  between  Philadelphia 
and  Pittsburgh,  frequently  refused  to  load  at  the  current  price. 
"Now,  neither  the  carrier  nor  the  warehouseman  adds  a  particle  to 
the  intrinsic  value  of  the  thing.  The  one  delivers  at  the  place,  and 
the  other  at  the  time,  that  suits  the  interest  or  the  convenience  of 
the  owner  of  it,  in  whose  estimation  it  receives  an  increase  of  its 
relative  value  from  the  services  rendered  in  respect  of  it,  else  he 
would  not  have  undertaken  to  pay  for  them.  I  take  it,  then,  that, 
in  regard  to  lien,  a  warehouseman  stands  on  a  footing  with  a  car- 
rier, whom  in  this  country  he  closely  resembles. 

Now,  it  is  clear  from  Sodergren  v.  Flight  &  Jennings,  cited 
East,  662,  that  where  the  o\^Tiership  is  entire  in  the  consignee,  or 
a  purchaser  from  him,  each  parcel  of  the  goods  is  bound,  not  only  for 
its  particular  proportion,  but  for  the  whole,  provided  the  whole 
has  been  carried  under  one  contract ;  it  is  otherwise  where  to  charge 
a  part  for  the  whole  would  subject  a  purchaser  to  answer  for  the  goods 
of  another,  delivered  by  the  bailee  with  knowledge  of  the  circum- 
stances. In  this  instance,  the  entire  interest  was  in  Hamilton  & 
Humes,  in  whose  right  the  plaintiff  sues;  and  the  principle  laid  down 
by  the  presiding  Judge  was  substantially  right.  On  the  other  hand, 
the  full  benefit  of  it  was  not  given  to  the  defendant  in  charging  that 
the  demand  and  refusal  was  evidence  of  conversion.  There  was  no 
evidence  of  tender  to  make  the  detention  wrongful ;  and  the  defend- 
ant would  have  had  cause  to  complain,  had  the  verdict  been  against 
him,  of  the  direction  to  deduct  the  entire  price  of  the  storage  from 
the  value  of  the  articles  returned,  and  to  find  for  the  plaintiff  a  sum 
equal  to  the  difference.  But  there  has  been  no  error  which  the  plain- 
tiff can  assign. 

Judgment  affirmed. 

Note.  —  The  reasoning  of  Gibson,  C.J.,  respecting  a  lien  for  an 
agister,  was  approved  in  Kelsey  v.  Layne,  28  Kan.  218,  223,  and  the 
Pennsylvania  court  has  decided  that  an  agister  has  a  common  law 
lien.  Yearsley  v.  Gray,  140  Pa.  238.  But  in  the  United  States  the 
great  weight  of  authority  is  to  the  effect  that  neither  an  agister  nor  a 
livery'-stable  keeper  has  a  lien.  See  Hickman  v.  Thomas,  16  Ala.  666; 
Lewis  V.  Tijler,  23  Cal.  364;  Goodrich  v.  Willard,  7  Gray  (Mass.)  183. 

This  result  has,  however,  been  very  frequently  changed  by  statute. 

Everywhere  in  the  United  States  a  person  regularly  engaged  in 
business  as  a  warehouseman  has  a  lien  for  his  storage  charges.  See 
Scott  V.  Jester,  13  Ark.  437;  Low  v.  Martin,  18  111.  286;  Stoddard  v. 
Crocker,  100  Me.  450;  Shingleur- Johnson  v.  Canton  Warehouse  Co., 
78  Miss.  875,  and  the  cases  cited  in  the  following  paragraph  of  this 
note.  Frequently  this  right  is  confirmed,  or  enlarged,  by  statute. 


242  DE    VINNE    V.    RIANHARD.  [CHAP.  I. 

If  goods  are  received  under  one  contract,  and  part  delivered 
without  the  payment  of  charges,  the  warehouseman  may  hold  the 
balance  for  the  charges  upon  all  the  goods.  Barker  v.  Brown,  138 
Mass.  340;  Schmidt  v.  Blood,  9  Wend.  (N.  Y.)  268;  Devereux  v.  Flem- 
ing, 53  Fed.  Rep.  401. 


DE  VINNE   V.   RIANHARD. 

9  Daly  (N.Y.)  406.     1880. 

Appeal  from  a  judgment  of  this  court  entered  on  the  report  of  a 
referee. 

The  action  was  brought  to  foreclose  a  lien  claimed  by  the  plaintiffs 
upon  certain  type,  for  printing  and  other  work  done  by  them  for  the 
defendants,  the  o^vners  of  the  type  The  plaintiffs  were  printers,  and 
had  for  many  years  printed  for  the  defendant,  the  McKillop  & 
Sprague  Company,  of  which  the  defendant  Rianhard  had  been  ap- 
pointed receiver,  a  commercial  register,  published  semi-annually, 
giving  the  financial  standing  of  merchants  throughout  the  United 
States.  The  company  had  purchased  a  large  quantity  of  type  for 
printing  its  register,  the  greater  portion  of  which  was  usually  left 
standing  as  set  up  in  pages  for  the  issue  of  each  edition  of  the  book 
until  the  tim.e  came  for  printing  the  next  edition,  when  the  practice 
was,  instead  of  setting  up  the  type  anew,  to  merely  make  such  cor- 
rections and  changes  as  might  be  rendered  necessary  by  changes 
in  the  matters  to  be  published. 

The  action  was  referred  by  consent,  and  upon  trial  the  referee 
found  for  the  plaintiffs.  His  report  was  confirmed;  and  judgment 
thereon  was  directed  for  the  plaintiffs.  From  the  judgment  the 
defendant  Rianhard  appealed. 

Charles  P.  Daly,  Chief  Justice.  —  The  plaintiffs,  in  my  opinion, 
had  no  lien  upon  the  tjT^e.  It  was  held  in  Bleaden  v.  Hancock,  jNIood. 
&  M.  465,  that  a  printer  has  no  lien  upon  stereotjTpe  plates  which 
are  left  with  him  to  print  from;  and  I  can  see  no  distinction,  so  far  as 
respects  the  right  of  Hen,  between  tjT^e,  as  such,  and  stereot}-pe 
plates.  Cross,  a  careful  and  very  reliable  elementary  WTiter  on  the 
law  of  lien  says,  as  the  result  of  the  cases  when  has  book  was  written, 
forty  years  ago,  that  "the  courts  have  recognized  and  allowed  with- 
out restriction,  the  right  of  every  bailee  to  a  hen  on  the  goods  bailed 
to  him,  where  any  additional  value  has  been  conferred  by  him  on  the 
chattel,  either  directly  by  the  exercise  of  personal  labor  and  skill  or 
indirectly  by  the  intermediate  use  of  any  instrument  over  which  he 
has  control;"  and  that  the  right,  when  it  does  not  exist  from  usage, 
or  is  not  obtained  by  contract,  depends  upon  whether  any  additional 
value  has  been  conferred  bj^  the  bailee  on  the  chattel,  may  be  illus- 
trated by  the  decision  in  Jackson  v.  Cummins,  5  Mees.  &  W.  342, 


;iL\P.  I.]  NICHOLSON    V.    CHAPMAN.  243 

that  an  agister,  or  one  who  takes  charge  of  horses  or  cattle,  has  no 
lien  for  their  keep,  because  he  does  not  confer  any  additional  value 
on  the  animal  but  merely  takes  charge  of  it  and  feeds  it;  and  the 
decision  in  Scarf e  v.  Morgan,  4  Alees.  &  W.  270,  that  one  who  receives 
a  mare  to  be  covered  by  a  stallion  has  a  lien,  as  the  mare  may  be 
made  more  valuable,  by  proving  in  foal;  in  the  first  of  which  cases. 
Baron  Parke  declares  the  rule  to  be  as  follows :  The  general  rule  is,  in 
the  absence  of  any  special  agreement,  that,  whenever  a  party  has 
exi^ended  labor  and  skill  in  the  improvement  of  a  chattel  bailed  to  him, 
he  has  a  lien  upon  it.  This  rule  has  been  questioned  in  Steinman  v. 
Wilkins,  7  Watts  &  S.  466;  but  has  been  adhered  to  in  this  and  other 
states,  Grinnell  v.  Cook,  3  Hill,  491;  Morgan  v.  Congdon,  4  X.Y.  553; 
Pinney  v.  Wells,  10  Conn.  105;  Cummings  v.  Harris,  3  Vt.  244;  and 
if  it  is  to  be  departed  from,  it  must  be  left  to  the  court  of  appeals  to 
do  so.  It  is  not  for  this  court  to  overturn  or  disregard  a  long  line  of 
authorities.  The  respondent  relies  upon  the  rule  as  it  is  laid  down  by 
Senator  Verplank  in  McFarland  v.  Wheeler,  26  Wend.  467:  "That 
every  man  who  has  law^ful  possession  of  anything  upon  which  he  has 
sxpended  his  money,  labor  or  skill,  at  the  request  of  the  o^\^ler,  has  a 
right  to  detain  it  as  security  for  his  debt."  This  is  a  loose  statement 
of  the  rule,  which  is  more  correctly  laid  do^vn  by  Jewett,  J.,  in 
Morgan  v.  Congdon,  4  N.Y.  553,  as  follows:  that  ''Every  bailee  for 
hire,  who  by  his  labor  and  skill  has  imparted  an  additional  value  to  the 
goods,  has  a  lien  upon  the  property  for  the  pajTiient  of  his  reasonable 
charges,"  which  is  the  rule  that  must  be  appHed  in  this  case. 

The  type  from  which  the  plaintiffs  printed  the  ''Register,"  from 
time  to  time,  for  the  McKillop  &  Sprague  Company,  was  furnished 
by  the  company,  and  belonged  to  them.  It  cannot  be  assumed  that 
the  value  of  it,  as  tj^e,  was  enhanced  by  the  plaintiffs'  printing  from 
it.  On  the  contrary,  if  there  is  any  inference,  it  is  that  the  constant 
use  and  printing  from  the  type  would  diminish  its  value.  The  plain- 
tiffs had  a  lien  upon  the  book  printed  from  the  tj'pe,  for  that  was  a 
thing  produced  by  their  labor  and  skill ;  but  I  fail  to  see  how,  under 
the  rule  established  by  the  authorities  cited,  they  could  acquire, 
except  by  contract,  any  lien  upon  the  type,  which  was  purchased  by 
the  jNIcKillop  &  Sprague  Company,  and  left  with  the  plaintiffs  to 
print  from. 

Judgment  reversed. 


NICHOLSON  V.   CHAPMAN. 

2  H.  Black.  254.     1793. 

Certain  timber  of  Nicholson  was  accidentally  loosened  from  a 
dock  on  the  river  Thames,  was  carried  by  the  tide  a  considerable  dis- 
tance, and  left  at  low  water  on  a  towing-path.   Chapman  found  it, 


244  NICHOLSON    V.    CHAPMAN.  [CHAP.  I. 

and  placed  it  beyond  the  reach  of  the  water  at  high  tide.  Nicholson 
demanded  the  timber  from  Chapman,  and  Chapman  refused  to 
deliver  it  until  he  was  paid  for  his  trouble. 

Lord  Chief  Justice  Eyre.  It  is  therefore  a  case  of  mere  finding, 
and  taking  care  of  the  thing  found  (I  am  willing  to  agree)  for  the 
owner.  This  is  a  good  office,  and  meritorious,  at  least  in  the  moral 
sense  of  the  word,  and  certainly  entitles  the  party  to  some  reasonable 
recompence  from  the  bounty,  if  not  from  the  justice  of  the  owner; 
and  of  which,  if  it  were  refused,  a  court  of  justice  would  go  as  far 
as  it  could  go  towards  enforcing  the  pajTnent.  So  it  would  if  a 
horse  had  strayed,  and  was  not  taken  as  an  estray  bj''  the  lord  under 
his  manorial  rights,  but  was  taken  up  by  some  good-natured  man 
and  taken  care  of  by  him,  till  at  some  trouble,  and  perhaps  at  some 
expense,  he  had  found  out  the  owner.  So  it  would  be  in  every  other 
case  of  finding  that  can  be  stated  (the  claim  to  the  recompence 
differing  in  degree,  but  not  in  principle);  which  therefore  reduces 
the  merits  of  this  case  to  this  short  question.  Whether  every  man 
who  finds  the  property  of  another  which  happens  to  have  been  lost 
or  mislaid,  and  voluntarily  puts  himself  to  some  trouble  and  expense 
to  preserve  the  thing,  and  to  find  out  the  o^^^ler,  has  a  lien  upon  it 
for  the  casual,  fluctuating,  and  uncertain  amount  of  the  recom- 
pence which  he  may  reasonably  deserve?  It  is  enough  to  say,  that 
there  is  no  instance  of  such  a  lien  having  been  claimed  and  allowed ; 
the  case  of  a  pointer  dog  was  a  case  in  which  it  was  claimed  and 
disallowed,  and  it  was  thought  too  clear  a  case  to  bear  an  argument. 
Principles  of  public  policy  and  commercial  necessity  support  the 
lien  in  the  case  of  salvage.  Not  only  public  policy  and  commercial 
necessity  do  not  require  that  it  should  be  established  in  this  case, 
but  very  great  inconvenience  may  be  apprehended  from  it  if  it 
were  to  be  established.  The  o\\'ners  of  this  kind  of  property,  and 
the  oAvncrs  of  craft  upon  the  river,  which  lie  in  many  places  moored 
together  in  large  numbers,  would  not  only  have  common  accidentr- 
from  the  carelessness  of  their  servants  to  guard  against,  but  also  the 
wilful  attempts  of  ill-designing  people  to  turn  their  floats  and  vessels 
adrift  in  order  that  they  might  be  paid  for  finding  them.  I  men- 
tioned in  the  course  of  the  cause  another  great  inconvenience, 
nam.ely,  the  situation  in  which  an  owner,  seeking  to  recover  his 
property  in  an  action  of  trover,  will  be  placed,  if  he  is  at  his  peril  to 
make  a  tender  of  a  sufficient  recompence  before  he  brings  his  action: 
such  an  o-wTier  must  always  pay  too  much,  because  he  has  no  means 
of  knowing  exactly  how  much  he  ought  to  pay,  and  because  he  must 
tender  enough.  I  know  there  are  cases  in  which  the  owner  of  prop- 
erty must  submit  to  this  inconvenience;  but  the  number  of  them 
ought  not  to  be  increased:  perhaps  it  is  better  for  the  public  that 
these  voluntary  acts  of  benevolence  from  one  man  to  another, 
which  are  charities  and  moral  duties,  but  not  legal  duties,  should 


CHAP.  I.]  WENTWORTH    V.    DAY.  245 

depend  altogether  for  their  reward  upon  the  moral  duty  of  gratitude. 
But  at  any  rate,  it  is  fitting  that  he  who  claims  the  reward  in  such 
case  should  take  upon  himself  the  burthen  of  proving  the  nature  of 
the  service  which  he  has  performed,  and  the  quantmn  of  the  recom- 
pence  which  he  demands,  instead  of  throwing  it  upon  the  owner  to 
estimate  it  for  him,  at  the  hazard  of  being  non-suited  in  an  action 
3f  trover. 

Judgment  for  the  'plaintiff. 

Note.  —  In  Reeder  v.  Anderson^s  Administrators,  4  Dana  (Ky.) 
193,  Robertson,  C.J.,  said:  — 

"  The  only  question  to  be  considered  in  this  case  is,  whether  the  law 
will  imply  a  promise,  by  the  owner  of  a  runawaj^  slave,  to  pay  a 
reasonable  compensation  to  a  stranger  for  a  voluntary  apprehension 
and  restitution  of  the  fugitive.  And,  though  such  friendly  offices  are 
frequently  those  only  of  good  neighborship,  which  should  not  be 
influenced  by  mercenary  motives  or  expectations  —  nevertheless,  it 
seems  to  us  that  there  is  an  implied  request  from  the  owner,  to  all 
other  persons  to  endeavor  to  secure  to  him  lost  property  which  he  is 
anxious  to  retrieve;  and  that,  therefore,  there  should  be  an  implied 
undertaking  to  (at  least)  indemnify  any  person  who  shall,  by  the 
expenditure  of  time  or  money,  contribute  to  a  reclamation  of  the  lost 
property." 

See,  accord,  Chase  v.  Corcoran,  106  Mass.  286;  Amory  v.  Flyn,  10 
Johns.  (N.Y.)  102,  103.   See,  contra,  Watts  v.  Ward,  1  Oreg.  86. 


WENTWORTH   v.   DAY. 

3  Met.  (Mass.)  352.     1841. 

This  action,  which  was  trover  for  a  watch,  was  submitted  to 
the  court  on  the  following  statement  of  facts: 

The  plaintiff  lost  the  watch  mentioned  in  his  declaration,  about 
the  middle  of  October  1839,  in  Bradford,  in  the  county  of  Essex, 
and  put  the  following  advertisement  into  the  Essex  Banner,  a 
newspaper  published  at  Haverhill  in  said  county:  "Twenty  Dollars 
reward.  Lost,  upon  the  road  from  Haverhill  to  Brighton,  about  two 
miles  from  Haverhill  Bridge,  a  gold  lever  watch.  Whoever  will 
return  it  to  this  office  shall  receive  the  above  reward.  Francis 
Wentworth.   Oct.  12." 

The  watch  was  found,  a  few  days  afterwards,  by  a  minor  son  of 
the  defendant,  who  delivered  it  to  the  defendant,  and  he  took  the 
custody  of  it  for  his  son,  and  very  soon  afterwards  left  it  at  the 
printing  office  of  the  Banner,  in  the  care  of  the  printer,  with  direc- 
tions to  deliver  it  to  the  owner,  on  his  paying  the  $20  reward. 


246  WENTWORTH    V.    DAY.  "  [CHAP.  I. 

In  the  month  of  January  1840,  the  plaintiff  returned  to  Haverhill, 
and  on  his  refusing  to  pay  the  S20,  the  defendant  resumed  the 
possession  of  the  watch,  and  while  it  was  thus  in  his  possession,  the 
plaintiff  demanded  it  of  him,  but  he  refused  to  deliver  it,  unless  the 
plaintiff  would  pay  him  the  $20  for  his  son.  The  plaintiff  refused  to 
do  this,  but  said  he  would  pay  SIO.  The  defendant  refused  to  deliver 
the  watch,  and  the  plaintiff  brought  this  action. 

Shaw,  C.J.  Although  the  finder  of  lost  property  on  land  has  no 
right  of  salvage,  at  common  law,  yet  if  the  loser  of  property,  in 
order  to  stimulate  the  vigilance  and  industry  of  others  to  find  and 
restore  it,  will  make  an  express  promise  of  a  reward,  either  to  a 
particular  person,  or  in  general  terms  to  any  one  who  will  return  it 
to  him,  and,  in  consequence  of  such  offer,  one  does  return  it  to 
him,  it  is  a  valid  contract.  Until  something  is  done  in  pursuance 
of  it,  it  is  a  mere  offer,  and  may  be  revoked.  But  if,  before  it  is 
retracted,  one  so  far  complies  with  it  as  to  perfonn  the  labor,  for 
which  the  reward  is  stipulated,  it  is  the  ordinary  case  of  labor  done 
on  request,  and  becomes  a  contract  to  pay  the  stipulated  compensa- 
tion. It  is  not  a  gratuitous  service,  because  something  is  done  which 
the  party  was  not  bound  to  do,  and  without  such  offer  might  not 
have  done.  Symmes  v.  Frazier,  6  Mass.  344. 

But  the  more  material  question  is,  whether,  under  this  offer  of 
reward,  the  finder  of  the  defendant's  watch,  or  the  father,  who  acted 
in  his  behalf  and  stood  in  his  right,  had  a  lien  on  the  watch,  so  that 
he  was  not  bound  to  deliver  it  till  the  reward  was  paid. 

A  lien  may  be  given  by  express  contract,  or  it  may  be  implied 
from  general  custom,  from  the  usage  of  particular  trades,  from  the 
course  of  dealing  between  the  particular  parties  to  the  transaction, 
or  from  the  relations  in  which  they  stand,  as  principal  and  factor. 
Green  v.  Farmer,  4  Bur.  2221.  In  Kirkman  v.  Shawcross,  6  T.  R.  14, 
it  was  held,  that  where  certain  dyers  gave  general  notice  to  their 
customers,  that  on  all  goods  received  for  dyeing,  after  such  notice, 
they  would  have  a  lien  for  their  general  balance,  a  customer  dealing 
with  such  dyers,  after  notice  of  such  terms,  must  be  taken  to  have 
assented  to  them,  and  thereby  the  goods  became  charged  ■v\dth  such 
lien,  by  force  of  the  mutual  agi'eement.  But  in  many  cases  the  law 
implies  a  lien,  from  the  presumed  intention  of  the  parties,  arising 
from  the  relation  in  which  they  stand.  Take  the  ordinary  case  of 
the  sale  of  goods,  in  a  shop  or  other  place,  where  the  parties  are 
strangers  to  each  other.  By  the  tontract  of  sale,  the  property  is 
considered  as  vesting  in  the  vendee;  but  the  vendor  has  a  lien  on 
the  property  for  the  price,  and  is  not  bound  to  deliver  it,  till  the 
price  is  paid.  Nor  is  the  purchaser  bound  to  pay,  till  the  goods  are 
delivered.  They  are  acts  to  be  done  mutually  and  simultaneously. 
This  is  founded  on  the  legal  presumption,  that  it  was  not  the  inten- 
tion of  the  vendor  to  part  with  his  goods  till  the  price  should  be 


CHAP.  I.]  WENTWORTK    V.    DAY.  247 

paid,  nor  that  of  the  purchaser  to  part  with  his  money  till  he  should 
receive  the  goods.  But  this  presumption  may  be  controlled,  by  evi- 
dence proving  a  different  intent,  as  that  the  buyer  shall  have  credit, 
or  the  seller  be  paid  in  something  other  than  money. 

In  the  present  case,  the  duty  of  the  plaintiff  to  pay  the  stipulated 
reward  arises  from  the  promise  contained  in  his  advertisement. 
That  promise  was,  that  whoever  should  return  his  watch  to  the 
printing  office  should  receive  twenty  dollars.  No  other  time  or  place 
of  pajinent  was  fixed.  The  natural,  if  not  the  necessaiy  implication 
is,  that  the  acts  of  performance  were  to  be  mutual  and  simultaneous : 
the  one  to  give  up  the  watch,  on  pajanent  of  the  reward;  the  other 
to  pay  the  reward,  on  receiving  the  watch.  Such  being,  in  our  judg- 
ment, the  nature  and  legal  effect  of  this  contract,  we  are  of  opmion 
that  the  defendant,  on  being  ready  to  deliver  up  the  watch,  had  a 
right  to  receive  the  reward,  in  behalf  of  himself  and  his  son,  and  was 
not  bound  to  surrender  the  actual  possession  of  it  till  the  reward 
was  paid ;  and  therefore  a  refusal  to  deUver  it,  without  such  payment, 
was  not  a  conversion. 

It  was  competent  for  the  loser  of  the  watch  to  propose  his  own 
terms.  He  might  have  promised  to  pay  the  reward  at  a  given  time 
after  the  watch  should  have  been  restored,  or  in  any  other  manner 
inconsistent  with  a  lien  for  the  reward  on  the  article  restored;  in 
which  case,  no  such  lien  would  exist.  The  person  restoring  the 
watch  would  look  only  to  the  personal  responsibility  of  the  adver- 
tiser. It  was  for  the  latter  to  consider,  whether  such  an  offer  would 
be  equally  efficacious  in  bringing  back  his  lost  property,  as  an  offer 
of  a  reward  secured  by  a  pledge  of  the  property  itself;  or  whether, 
on  the  contrary,  it  would  not  afford  to  the  finder  a  strong  temptation 
to  conceal  it.  With  these  motives  before  him,  he  made  an  offer,  to 
pay  the  reward  on  the  restoration  of  the  watch;  and  his  subsequent 
attempt  to  get  the  watch,  without  perfomiing  his  promise,  is  equally 
inconsistent  with  the  rules  of  law  and  the  dictates  of  justice. 

The  circumstance,  in  this  case,  that  the  watch  was  found  by  the 
defendant's  son,  and  by  him  delivered  to  his  father,  makes  no  differ- 
ence. Had  the  promise  been  to  pay  the  finder,  and  the  suit  were 
brought  to  recover  the  reward,  it  would  present  a  different  question. 
Here  the  son  delivered  the  watch  to  the  father,  and  authorized  the 
father  to  receive  the  reward  for  him.  If  the  son  had  a  right  to  detain 
it,  the  father  had  the  same  right,  and  his  refusal  to  deliver  it  to  the 
0"wner,  without  payment  of  the  reward,  was  no  conversion. 

Judgment  for  the  defendant. 


248  WILSON    V.    GUYTON.  [CHAP.  I, 

WILSON   V.   GUYTON. 

8  Gill  (Md.)  213.     18-49. 

Appeal  from  Harford  County  Court. 

This  was  an  action  of  replevin,  instituted  by  the  appellee,  for  the 
recovery  of  a  horse  which  had  strayed  from  the  possession  of  the 
plaintiff,  and  had  been  taken  up  by  one  William  H.  Pearce,  and  was 
retained  by  the  defendant  as  Pearce's  agent.  The  plea  was  nwi  cepit. 

At  the  trial,  the  defendant  proved  that  the  plaintiff  was  the  o^aier 
of  the  horse  in  question,  and  that  having  lost  said  horse  in  the 
month  of  July,  1847,  the  plaintiff  offered  a  Hberal  reward,  by  adver- 
tisement, to  any  one  who  would  take  up  said  horse,  and  deliver  him 
to  the  plaintiff;  and  that  said  Pearce,  after  said  advertisement,  and 
in  consequence  thereof,  took  up  said  horse,  and  offered  to  deliver 
him  to  the  plaintiff,  upon  said  plaintiff's  paying  S3,  as  the  reward 
for  such  taking  up.  He  also  further  proved,  that  plaintiff  admitted 
that  the  sum  of  S3  was  a  reasonable  reward,  and  within  the  tenns  of 
the  advertisem.ent,  and  that  defendant  held  said  horse  at  the  time 
the  writ  was  issued  in  this  case,  as  the  agent  of  said  Pearce.  The 
defendant  then  prayed  the  court  to  direct  the  jury,  "that  unless 
the  plaintiff  proved,  or  offered  proof  that  he  had,  before  the  institu- 
tion of  this  suit,  paid  the  said  $3,  the  reward  aforesaid,  or  tendered 
or  offered  to  pay  the  same,  the  said  plaintiff  is  not  entitled  to 
recover."  Which  direction  the  court  (Archer,  C.J.,  and  Purviance, 
A.J.,)  refused  to  give,  but  instructed  the  jur}'',  that  the  said  William 
H.  Pearce  had  no  right  to  retain  said  horse  till  the  said  reward  was 
paid.  The  defendant  excepted,  and  the  verdict  and  judgment  being 
against  him,  appealed  to  this  court. 

Dorset,  C.J.,  delivered  the  opinion  of  this  court. 

The  doctrine  of  lien  is  more  favored  now  than  fonnerly;  and  it  is 
now  recognised  as  a  general  principle,  that  wherever  the  part}'  has, 
by  his  labor  or  skill,  etc.,  improved  the  value  of  property  placed  in 
his  possession,  he  has  a  lien  upon  it  until  paid.  And  liens  have  been 
implied  when,  from  the  nature  of  the  transaction,  the  owmer  of  the 
property  is  assumed  as  having  designed  to  create  them,  or  when  it 
can  be  fairly  inferred,  from  circumstances,  that  it  was  the  under- 
standing of  the  parties  that  they  should  exist.  The  existence  of  liens 
has  also  been  sustained  where  they  contributed  to  promote  public 
policy  and  convenience.  If  any  article  of  personal  property  has  been 
lost,  or  strayed  awaj^,  or  escaped  from  its  owmer,  and  he  offers  a 
certain  reward,  payable  to  him  who  shall  recover  and  deliver  it 
back  to  his  possession,  it  is  but  a  just  exposition  of  his  offer,  that  he 
did  not  expect  that  he  who  had  expended  his  time  and  money  in 
the  pursuit  and  recover^'  of  the  lost  or  escaped  property,  would 
restore  it  to  him,  but  upon  the  pajTnent  of  the  proffered  reward, 


CHAP.  I.]      BRITISH  EMPIRE  SHIPPING  CO.,  LIMITED,  V.  SOMES.  249 

and  that  as  security  for  this,  he  was  to  remain  in  possession  of  the 
same  until  its  restoration  to  its  owner,  and  then  the  payment  of  the 
reward  was  to  be  a  simultaneous  act.  It  is  no  forced  construction  of 
his  act,  to  say  that  he  designed  to  be  so  understood  by  him  who 
should  become  entitled  to  the  reward.  It  is,  consequently,  a  lien 
created  by  contract.  It  is  for  the  interest  of  property  holders  so  to 
regard  it.  It  doubles  their  prospect  of  a  restoration  of  their  property. 
To  strangers  it  is  everything;  for  few,  indeed,  would  spend  their 
time  and  money,  and  incur  the  risks  incident  to  bailment,  but  from 
a  belief  in  the  existence  of  such  a  lien.  Public  convenience,  sound 
policy,  and  all  the  analogies  of  the  law,  lend  their  aid  in  support  of 
such  a  principle.  Nor  are  we  without  an  express  authority  upon  this 
subject.  In  Wentworth  v.  Day,  3  Metcalf,  352,  the  supreme  court 
of  Massachusetts  decided,  "that  a  finder  of  lost  property,  for  the 
restoration  of  which  the  owner  has  offered  a  reward,  has  a  lien  on 
the  property,  and  may  retain  possession  of  it,  if,  on  his  offer  to  restore 
it,  the  owner  refuses  to  pay  the  reward." 

But,  in  the  case  before  us,  there  is  no  ground  for  the  implication 
of  such  a  lien  from  the  compact  of  the  parties.  There  was  no  fixed 
or  certain  reward  offered  by  the  owner,  to  be  paid  on  the  delivery 
of  his  property.  His  offer  was  to  pay  a  "liberal  reward."  Who  was 
to  be  the  arbiter  of  the  liberality  of  the  offered  reward?  It  cannot 
be  supposed  that  the  owner,  by  his  offer,  designed  to  constitute  the 
recoverer  of  his  property  the  exclusive  judge  of  the  amount  to  be 
paid  him  as  a  reward.  And  it  is  equally  unreasonable  and  unjust, 
to  say  that  the  owner  should  be  such  exclusive  judge.  In  the  event 
of  a  difference  between  them,  upon  the  subject,  the  amount  to  be 
paid  must  be  ascertained  by  the  judgment  of  the  appropriate 
judicial  tribunal.  This  would  involve  the  delays  incident  to  litiga- 
tion, and  it  would  be  a  gross  perversion  of  the  intention  of  the  owner 
to  infer,  from  his  offered  reward,  an  agreement  on  his  part,  that  he 
was  to  be  kept  out  of  the  possession  of  his  property  till  all  the  delays 
of  litigation  were  exhausted.  To  the  bailee  thus  in  possession  of 
property,  such  a  lien  would  rarely  be  valuable,  except  as  a  means  of 
oppression  and  extortion ;  and,  therefore,  the  law  will  never  infer  its 
existence  either  from  the  agreement  of  the  parties,  or  in  fm'therance 
of  public  convenience  or  policy. 

Judgment  affirmed. 


BRITISH  EMPIRE  SHIPPING   COMPANY, 
LIMITED,  V.  SOMES. 


E.  B.  &  E.  353.     1858. 


The  plaintiffs  delivered  a  ship  to  the  defendants  to  be  repaired. 
After  the  repairs  were  completed,  the  plaintiffs  demanded  the  ship 


250  BRITISH  EMPIRE  SHIPPING  CO.,  LIMITED,  V.  SOMES.      [CHAP.  I. 

and  the  defendants  refused  to  deliver  it  until  their  charges  were  paid. 
They  notified  the  plaintiffs  that  they  should  charge  them  an  addi 
tional  amount  for  the  hire  of  a  dock  so  long  as  the  ship  remainec 
with  them.    This  additional  charge  was  later  paid  under  protest,  and 
the  plaintiffs  now  sue  to  recover  back  the  amount  so  paid. 

Lord  Campbell,  C.J.  We  are  of  opinion  that,  under  the  circum- 
stances stated  in  the  special  case,  the  defendants  are  not  entitled  to 
retain  the  sum  paid  to  them  in  respect  of  the  item  of  567Z.,  or  any 
other  sum,  as  a  compensation  for  the  use  of  their  dock  in  detaining 
the  plaintiffs'  ship.  As  artificer  who  had  expended  their  labour  and 
materials  in  repairing  the  ship  which  the  plaintiffs  had  delivered  to 
them  to  be  repaired,  the  defendants  had  a  lien  on  the  ship  for  the 
amount  of  the  sum  due  to  them  for  these  repairs;  but  we  do  not  find 
any  ground  on  which  their  claim  can  be  supported  to  be  paid  for  the 
use  of  their  dock  while  they  detained  the  ship  under  the  lien  against 
the  will  of  the  owners.  There  is  no  evidence  of  any  special  contract 
for  such  a  pajTnent.  The  defendants  gave  notice  that  they  would 
demand  211.  a  day  for  the  use  of  their  dock  dui'ing  the  detention:  but 
the  plaintiffs  denied  their  liability  to  make  any  such  pajonent,  and 
insisted  on  their  right  to  have  their  ship  immediately  delivered  up  to 
them.  Nor  does  any  custom  or  usage  appear  to  authorize  such  a 
claim  for  compensation,  even  supposing  that  a  w^harfinger  with  whom 
goods  had  been  deposited,  he  being  entitled  to  warehouse  rent  for 
them  from  the  time  of  the  deposit,  might  claim  a  continuation  of  the 
payment  during  the  time  he  detains  them  in  the  exercise  of  right  of 
lien  till  the  arrears  of  warehouse  rent  due  for  them  is  paid  (see  Rex  v. 
Humphery,  M'Cl.  &  Y.  173) :  there  is  no  ground  for  a  similar  claim 
here,  as  there  was  to  be  no  separate  pajTuent  for  the  use  of  the  dock 
while  the  ship  was  under  repair,  and  the  claim  only  commences  from 
the  refusal  to  deliver  her  up.  The  onus  therefore  is  cast  upon  the 
defendants  to  shew  that,  by  the  general  law  of  England,  an  artificer 
who,  exercising  his  right  of  lien,  detains  a  chattel,  in  making  or  re- 
pairing which  he  has  expended  his  labour  and  materials,  has  a  claim 
against  the  owmer  for  taking  care  of  the  chattel  while  it  is  so  detained. 
But  the  claim  appears  to  be  quite  novel;  and,  on  principle,  there  is 
great  difficulty  in  supporting  it  either  ex  contractu  or  ex  delicto.  The 
owTier  of  the  chattel  can  hardly  be  supposed  to  have  promised  to  pay 
for  the  keeping  of  it  while,  against  his  \\dll,  he  is  deprived  of  the  use 
of  it;  and  there  seems  no  consideration  for  such  a  promise.  Then  the 
chattel  can  hardly  be  supposed  to  be  wrongfully  left  in  the  possession 
of  the  artificer,  w^hen  the  owner  has  been  prevented  by  the  artificer 
from  taking  possession  of  it  himself.  If  such  a  claim  can  be  sup- 
ported, it  must  constitute  a  debt  from  the  owner  to  the  artificer,  for 
which  an  action  might  be  maintained :  when  does  the  debt  arise,  and 
when  is  the  action  maintainable?  It  has  been  held  that  a  coachmaker 
cannot  claim  any  right  of  detainer  for  standage,  unless  there  be  an 


CHAP.  I.]      BRITISH  EMPIRE  SHIPPING  CO.,  LIMITED,  V.  SOMES  251 

express  contract  to  that  effect,  or  the  owner  leaves  his  property  on 
the  premises  beyond  a  reasonable  time,  and  after  notice  has  beer 
given  him  to  remove  it;  Hartley  v.  Hitchcock,  1  Stark.  408. 

The  right  of  detaining  goods  on  which  there  is  a  lien  is  a  remedy  to 
the  party  aggrieved  which  is  to  be  enforced  by  his  owa  act;  and, 
where  such  a  remedy  is  permitted,  the  common  law  does  not  seem 
generally  to  give  him  the  costs  of  enforcing  it.  Although  the  lord  of  a 
manor  be  entitled  to  amends  for  the  keep  of  a  horse  which  he  has 
seized  as  an  estray  {Henly  v.  Walsh,  2  Salk.  686),  the  distrainor  of 
goods  which  have  been  replevied  cannot  claim  any  lien  upon  them; 
Bradyll  v.  Ball,  1  Bro.  C.  C.  427.  So,  where  a  horse  was  distrained 
to  compel  an  appearance  in  a  hundred  court,  it  was  held  that, 
after  appearance,  the  plaintiff  could  not  justify  detaining  the  horse 
for  his  keep;  Bui.  N.  P.  45. 

If  cattle  are  distrained  damage  feasant,  and  impounded  in  a  pound 
overt,  the  owner  of  the  cattle  must  feed  them;  if  in  a  pound  covert  or 
close,  "the  cattle  are  to  be  sustained  with  meat  and  drink  at  the 
peril  of  him  that  distraineth,  and  he  shall  not  have  any  satisfaction 
therefor."  Co.  Litt.  47  b. 

For  these  reasons,  on  the  question  submitted  to  us,  we  give  judg- 
ment for  the  plaintiffs. 

Judgment  for  the  'plaintiffs. 

Note.  —  In  Devereux  v.  Fleming,  53  Fed.  401,  one  of  the  questions 
was  whether  a  Avarehouseman  had  any  claim  for  the  storage  of  goods 
subsequent  to  the  time  when  they  had  been  demanded  and  he  had 
refused  to  deliver  because  the  charges  were  not  paid.  The  court  said 
(p.  405) :  "  It  is  contended  with  great  earnestness  and  plausibility 
that,  when  a  warehouseman  enforces  his  lien  and  refuses  to  deliver 
on  demand,  his  custody  thenceforward  is  not  under  his  contract  of 
warehouseman,  and  for  the  use  and  benefit  of  his  customer,  but  his 
own  protection  and  benefit.  He  then  has  no  further  right  to  charge 
storage.  The  textbook  (Jones,  Liens,  §  972)  and  the  cases  quotec 
(especially  Somes  v.  Shipping  Co.,  8  H.  L.  Cas.  338)  do  not  sustain 
this  proposition  so  broadly  stated.  Where  one  is  placed  in  possession 
of  a  chattel  to  do  some  work  on  it,  and  refuses  to  deliver  it  when 
completed  until  he  is  paid,  he  cannot  charge  storage  of  that  chattel 
while  he  is  enforcing  his  lien,  because  the  original  contract  for  repair- 
ing and  the  subsequent  implied  contract  for  storage  are  entirely  dis- 
tinct and  separate ;  but  in  a  case  like  the  present,  when  the  contract 
is  that  of  storage,  and  the  contract  is  for  the  deliver}^  on  pajonent  of 
charges,  the  right  to  hold  the  goods  under  the  original  contract  does 
not  cease  until  those  charges  are  paid,  released,  or  tendered.  This 
seems  to  be  the  law  of  this  case.  As  no  tender  or  offer  to  pay  has 
been  made,  the  warehouse  charges  still  go  on." 

In  Folsom  v.  Barrett,  180  Mass.  439,  442,  the  owner  of  a  horse 


252  BRITISH  EMPIRE  SHIPPING  CO.,  LIMITED,  V.  SOMES.      [CHAP.  I. 

demanded  it  from  a  livery-stable  keeper  without  making  a  proper 
tender  of  the  amount  due  for  the  care  of  the  horse.  The  court 
said  that  the  liverj'-stable  keeper  might  hold  the  horse  for  the  ex- 
pense thereafter  incurred,  or  might  recover  such  expense  from  the 
owTier. 

At  common  law  the  general  rule  is  that  the  lienholder  has  no 
right  to  sell  the  chattel,  and  satisfy  the  debt  out  of  the  proceeds.  Such 
a  right  is^  however,  frequently  given  by  statute. 

There  are  authorities  holding  that  the  lienholder  may  not  have 
the  aid  of  equity  to  foreclose  a  hen.  Thames  Iron  Works  Co.  v. 
Patent  Derrick  Co.,  1  J.  &  H.  93;  Burrough  v.  Ely,  54  W.Va.  118. 
And  see  Gottstein  v.  Harrington,  25  Wash.  508.  Probably  in  ancient 
times  a  lien  was  given  by  the  common  law  only  where  the  possessor 
of  the  chattel,  not  having  made  a  definite  bargain  with  the  owmer, 
was  not  in  a  position  to  maintain  an  action  for  the  value  of  his 
services.  So  viewed,  the  lien  was  not  security  for  a  debt,  but  a  sub- 
stitute for  a  debt.  But  the  law  for  centuries  has  given  a  lien  even  if 
the  lienholder  had  a  cause  of  action  for  the  payment  of  the  services 
in  question.  To  regard  a  lien  as  secm'ity  for  a  debt  accords  wdth 
business  sense.  If  a  lien  is  security  for  a  debt,  it  would  seem  to  follow 
that  equity  should  supply  some  method  to  enforce  that  security, 
when  there  is  no  adequate  remedy  at  law.  This  view  is  supported  by 
Black  V.  Brennan,  5  Dana  (Ky.)  310;  Fox  v.  McGregor,  11  Barb. 
(N.Y.)  41 ;  Knapp  Co.  v.  McCaffrey,  177  U.S.  638.  See  also  Boorman 
V.  Wisconsin  Engine  Co.,  36  Wis.  207,  212. 


CHAP.  I.]  KRUGER    V.    WILCOX.  253 

B.  General  Liens. 


KRUGER  V.  WILCOX. 

1  Ambl.  252.     1755. 

Mico  was  general  agent  in  England  for  Watkins,  who  was  a 
merchant  abroad,  and  at  different  times  had  received  considerable 
consignment  of  goods,  and  upon  the  balance  of  account  was  in  dis- 
burse. Afterwards  Watldns  consigned  to  him  a  parcel  of  logwood, 
and  one  of  the  questions  in  the  case  was  whether  Mico  had  a  lien  on 
this  logwood,  or  its  proceeds,  for  the  balance  due  him. 

The  Lord  Chancellor  desired  four  merchants  to  attend  in  court. 
After  having  asked  them  several  questions,  upon  the  custom  and 
usage  of  merchants  relating  to  the  matter,  his  lordship  gave  his 
opinion,  which  was,  in  part,  as  follows:  — 

All  the  four  merchants,  both  in  their  examination  in  the  cause, 
and  now  in  court,  agree,  that  if  there  is  a  course  of  dealings  and  general 
account  between  the  merchant  and  factor,  and  a  balance  is  due  to  the 
factor,  he  may  retain  the  ship  and  goods,  or  produce,  for  such  balance 
of  the  general  account,  as  well  as  for  the  charges,  customs,  etc.,  paid 
on  the  account  of  the  particular  cargo.  They  consider  it  as  an  interest 
in  the  specific  things,  and  make  them  articles  in  the  general  account. 
Whether  this  was  ever  allowed  in  trover  at  law,  where  the  goods 
were  turned  into  money,  I  cannot  say;  nor  can  I  find  any  such  case. 
I  have  no  doubt  it  would  be  so  in  this  court,  if  the  goods  remained 
in  specie;  nor  do  I  doubt  of  its  being  so,  where  they  are  turned  into 
money. 

Note.  —  In  Nagle  v.  McFeeters,  97  N.Y.  196,  the  court  said  (p. 
202) :  "If  the  defendants  had,  upon  the  request  of  the  plaintiff,  ad- 
vanced to  him  money  for  his  accommodation,  in  advance  of  the  sale 
of  the  goods,  they  would  clearly  have  had  a  lien  upon  the  goods,  to 
secure  such  advances;  and  their  acceptances  for  plaintiff's  accom- 
modation stood  upon  the  same  footing.  Such  is  the  general  common- 
law  rule  between  principal  and  factor,  and  consignor  and  consignee. 
A  factor  has,  in  the  absence  of  any  express  agreement,  a  lien  upon 
the  goods  in  his  hands  as  his  security  for  all  advances  made,  or  ac- 
ceptances given  to  his  principal  in  the  business  of  his  agency,  or 
connected  with  the  goods  consigned  to  him.  The  law  implies  or  infers 
the  lien  from  the  relation  between  the  parties." 

In  Brown  &  Company  v.  M'Gran,  14  Pet.  479,  494,  Mr.  Justice 
Story  said:  "The  main  objection  to  the  instruction  is  of  a  more 
broad  and  comprehensive  character.    The  instruction  in  effect  de- 


254  BARNETT    V.    BRANDAO.  [cHAP,  I. 

cides  that  in  the  case  of  a  general  consignment  of  goods  to  a  factor 
for  sale,  in  the  exercise  of  his  own  discretion,  as  to  the  time  and  man- 
ner of  sale,  the  consignor  has  a  right,  by  subsequent  orders,  to  sus- 
pend or  postpone  the  sale  at  his  pleasure;  notwithstanding  the  factor 
has,  in  consideration  of  such  general  consignment,  already  made 
advances,  or  incurred  liabilities  for  the  consignor,  at  his  request,  trust- 
ing to  the  fund  for  his  due  reimbursement.  We  are  of  opinion  that 
this  doctrine  is  not  maintainable  in  point  of  law.  We  understand 
the  true  doctrine  on  this  subject  to  be  this:  Wherever  a  consignment 
is  made  to  a  factor  for  sale,  the  consignor  has  a  right,  generally,  to 
control  the  sale  thereof,  according  to  his  own  pleasure,  from  time  to 
time,  if  no  advances  have  been  made  or  liabilities  incurred  on  account 
thereof;  and  the  factor  is  bound  to  obey  his  orders.  This  arises  from 
the  ordinary  relation  of  principal  and  agent.  If,  however,  the  factor 
makes  advances,  or  incurs  liabilities  on  account  of  the  consignment, 
by  which  he  acquires  a  special  property  therein;  then  the  factor  has 
a  right  to  sell  so  much  of  the  consignment  as  may  be  necessary  to 
reimburse  such  advances  or  meet  such  liabilities;  unless  there  is  some 
existing  agreement  between  himself  and  the  consignor,  which  con- 
trols or  varies  this  right.  Thus,  for  example,  if  contemporaneous 
with  the  consignment  and  advances  or  liabilities  there  are  orders 
given  by  the  consignor  which  are  assented  to  by  the  factor,  that  the 
goods  shall  not  be  sold  until  a  fixed  time,  in  such  a  case  the  con- 
signment is  presumed  to  be  received  by  the  factor  subject  to  such 
orders;  and  he  is  not  at  liberty  to  sell  the  goods  to  reimburse  his  ad- 
vances or  liabilities,  until  after  that  time  has  elapsed.  The  same  rule 
will  apply  to  orders  not  to  sell  below  a  fixed  price;  unless,  indeed, 
the  consignor  shall,  after  due  notice  and  request,  refuse  to  provide 
any  other  means  to  reimburse  the  factors.  And  in  no  case  will  the 
factor  be  at  liberty  to  sell  the  consignment  contrary  to  the  orders  of 
the  consignor,  although  he  has  made  advances,  or  incurred  liabilities 
thereon,  if  the  consignor  stands  ready,  and  offers  to  reimburse  and 
discharge  such  advances  and  liabilities." 


BARNETT  v.  BRANDAO. 

6  M.  &  G.  630.     1843. 

Lord  Denman,  C.J.  There  are  two  questions  in  this  case  for  the 
determination  of  the  com-t  —  one  of  form,  the  other  of  substance. 
The  first,  which  is  one  of  form,  and  was  not  the  subject  of  discussion 
in  the  Court  of  Common  Pleas,  is,  whether  the  court  ought  to  take 
notice  of  the  general  lien  which  bankers  have  on  the  securities  of  their 
customers;  or  it  ought  to  have  been  averred,  as  a  matter  of  fact  in  the 
special  plea,  and  found  by  the  jury,  that  the  bankers  have  such  lien. 


CHAP.  I.]  BARNETT  V.    BRANDAO.  255 

That  such  a  general  lien  exists  was  not  disputed;  but  it  was 
insisted,  on  the  part  of  the  defendant  in  error,  that  the  foundation  of 
this  lien  is  usage,  from  which  a  contract  may  be  implied  between  the 
banker  and  the  customer  that  the  securities  belonging  to  the  latter 
shall  be  pledged  to  the  former  for  the  balance  due  to  him;  and,  being 
matter  of  implied  contract,  it  should  have  been  pleaded. 

On  the  other  hand,  the  learned  counsel  for  the  plaintiff  contended 
that  this  lien  existed  by  the  general  custom  of  trade,  constituting  the 
law-merchant,  and  need  not  be  pleaded,  for  the  court  takes  notice  of 
that  which  constitutes  the  law-merchant.  And  we  agree  in  this  view 
of  the  case.  The  law-merchant  forms  a  branch  of  the  law  of  England ; 
and  those  customs  which  have  been  universally  and  notoriously  prev- 
alent amongst  merchants,  and  have  been  found  by  experience  to  be 
of  public  use,  have  been  adopted  as  a  part  of  it,  upon  a  principle  of 
convenience,  and  for  the  benefit  of  trade  and  commerce;  and,  when 
so  adopted,  it  is  unnecessary  to  plead  and  prove  them.  They  are 
binding  on  all  ^N^thout  proof.  Accordingly  we  find  that  usages 
affecting  bills  of  exchange  and  bills  of  lading  are  taken  notice  of 
judicially. 

In  the  case  of  a  factor,  the  right  to  a  general  lien  at  first  appears 
to  have  been  made  the  subject  of  proof  in  the  cause;  as  in  Kruzer  v. 
Wilcox,  cited  in  1  Burr.  494,  and  reported  (as  Kruger  v.  Wilcox)  in 
Ambler,  252;  in  a  further  stage  of  which  case.  Lord  Hardwicke,  in 
order  to  satisfy  himself,  consulted  the  four  merchants  who  had  given 
evidence,  in  open  court  (a  course  which  would  not  have  been  proper 
if  it  had  been  a  mere  question  of  fact) ;  and  he  decreed  in  favour  of  a 
general  lien. 

Afterwards,  in  the  cases  of  Green  v.  Farmer,  4  Burr.  2218,  and 
Drinkwater  v.  Goodwin,  Cowp.  255,  Lord  Mansfield  considers  the 
right  as  fully  established;  and  certainly,  in  modem  practice,  it  is 
treated  as  a  matter  of  settled  law;  and  no  proof  is  ever  required,  that 
such  general  lien  exists,  as  a  matter  of  fact.  The  lien  of  bankers  — 
who  are  a  species  of  factors  in  pecuniary-  transactions  —  stands  on 
the  same  footing;  and  Lord  Kenyon,  in  Davis  v.  Bowsher,  who  had 
laid  down  the  same  law  before,  in  Jourdaine  v.  Lefevre,  1  Esp.  N.  P. 
C.  66,  declares  that  he  is  clearly  of  opinion,  that,  bij  the  general  law 
of  the  land,  a  banker  has  a  general  lien  upon  all  the  securities  in  his 
hands  belonging  to  any  particular  person,  for  his  general  balance. 
Jhis  right  was  acknowledged,  without  any  evidence  in  support  of  it, 
in  Bolland  v.  By  grave;  and  it  may  be  said,  with  equal  truth  of  bankers 
as  of  factors,  that  by  the  general  understanding  of  the  profession,  it 
is  never  deemed  necessary  to  give  e\ddence  of  usage  in  order  to 
support  the  claim;  and  it  would  be  productive  of  great  expense  and 
inconvenience  if  such  a  course  were  adopted.  We  are  therefore  of 
opinion  that  the  right  to  a  general  lien  in  the  case  of  a  banker  need  not 
be  pleaded,  and  that  we  are  judicially  bound  to  take  notice  of  it. 


256  RUSHFORTH    V.    HADFIELD.  [CHAF.  I. 

Note.  —  See,  to  the  same  effect,  the  opinion  of  the  judges  upon 
appeal  to  the  House  of  Lords  in  12  CI.  &  F.  787, 


Ex  parte  STERLING. 

16  Ves.  258.     1809. 

A  PETITION  was  presented  bj'  the  assignees,  under  a  commission  of 
bankruptcy,  to  have  deeds  and  papers,  belonging  to  the  bankrupt, 
delivered  up  by  an  attorney;  who  claimed  a  lien  upon  them  for  his 
general  bill. 

An  objection  was  taken  on  the  ground,  that  these  papers  were 
delivered  for  the  purpose  of  preparing  a  mortgage;  and  the  lien  was 
to  be  limited  accordingly. 

The  Lord  Chancellor.  The  general  lien  must  prevail.  Different 
papers  are  put  into  the  hands  of  an  attorney,  as  different  occasions 
for  furnishing  them  arise.  In  the  ordinary  case  of  lien  I  never  heard 
of  a  question,  upon  what  occasion  a  particular  paper  was  put  into  his 
hands;  but  if  in  the  general  course  of  dealing  the  cHent  from  time  to 
time  hands  papers  to  his  attorney,  and  does  not  get  them  again,  when 
the  occasion  that  required  them  is  at  an  end,  the  conclusion  is,  that 
they  are  left  wdth  the  attornej''  upon  the  general  account.  If  the 
intention  is  to  deposit  papers  for  a  particular  purpose,  and  not  to  be 
subject  to  the  general  lien,  that  must  be  by  special  agreement:  other- 
wise they  are  subject  to  the  general  lien,  which  the  attorney  has 
upon  all  papers  in  his  hands. 

Note. —  In  Gottstein  v.. Harrington,  25  Wash.  508,  the  court  held 
that  a  statute  declaring  and  confii'ming  the  common  law  as  to  the 
lien  of  attorneys  "did  not  intend  to  confer  an  enforcible  lien  against 
papers  in  possession,  as  it  provides  no  method  for  the  enforcement 
of  such  lien.  This,  indeed,  is  but  a  recognition  of  the  general  law  that 
a  retaining  lien  may  not  be  enforced,  but  may  merely  be  used  to 
embarrass  the  client,  or,  as  some  cases  express  it,  to  '  worry '  him  into 
the  payment  of  the  charges." 


RUSHFORTH  v.   HADFIELD. 

East,  224.     1806. 

This  was  an  action  of  trover  to  recover  the  value  of  a  quantity  of 
cloth  which  the  bankrupts  had  sent  by  the  defendants  as  common 
carriers,  who  claimed  a  lien  upon  it  for  their  general  balance  due  to 
them  as  such  carriers  for  other  goods  before  carried  by  them  for  the 


CHAP.  I.]  RUSHFORTH    V.    HADFIELD.  257 

banki'upts.  The  plaintiffs  had  tendered  the  carriage  price  of  the  par- 
ticular goods  in  dispute,  and  the  sole  question  was,  Whether  the 
defendants,  as  common  carriers,  had  a  lien  for  their  general  balance. 
On  the  first  trial  a  verdict  was  found  for  the  defendants,  which  this 
court  thought  was  not  sustained  by  the  evidence,  and  therefore  they 
granted  a  new  trial.  The  cause  was  again  tried  at  the  last  assizes  at 
York,  before  Chambre,  J.,  when  the  defendants'  book-keepers  in 
London,  at  Stamford,  and  at  Haddersfield,  swore  to  their  practice  to 
retain  goods  for  their  general  balance,  and  particularized  one  in- 
stance in  December,  1799,  where  an  action  was  brought,  which  being 
referred,  was  decided  on  another  point:  a  second  in  May,  1800,  where 
there  was  no  bankruptcy:  a  third  in  May,  1803,  where  the  bankrupt's 
assignee  demanded  the  goods,  but  afterwards  paid  the  balance:  a 
fourth  and  a  fifth  in  the  same  year,  when  the  individuals  paid  the 
balance,  but  no  bankruptcy  intervened:  and  a  sixth  instance  of  the 
like  sort  as  the  last  in  1804.  In  addition  to  these,  Welch,  a  carrier 
from  Manchester  and  Leeds,  deposed  to  an  instance  of  retention 
of  goods  for  the  general  balance  three  years  back,  where  a  bank- 
ruptcy intervened,  and  the  assignees  disputed  the  pajanent  at  first, 
but  afterwards  paid  the  balance ;  and  to  two  other  instances  of  goods 
sent  to  Glasgow;  one  where  the  carriage  of  the  particular  goods  was 
SI.  and  the  general  balance  20Z. ;  another  where  the  carriage  was  a  few 
shillings,  and  the  general  balance  81. ;  in  both  instances  bankruptcies 
intervened,  and  the  assignees  paid  the  general  balance.  Hanley,  a 
Northallerton  carrier,  spoke  to  two  instances  of  retainer  of  goods 
twelve  and  thirteen  years  ago  till  the  individuals  paid  the  general 
balance;  but  neither  were  banla'upts.  The  book-keeper  of  Pickford, 
a  carrier  from  London  to  Liverpool,  particularized  an  instance  of 
retaining  for  the  general  balance  in  1792,  where  the  vendee  became 
banknipt;  but  there  the  vendor  stopped  in  transitu,  and  he  paid  the 
general  balance  at  the  end  of  two  months :  a  second  similar  instance, 
in  the  same  year:  a  third  instance  in  1795,  where  the  senders  became 
bankrupts,  and  their  general  balance  was  paid  by  the  vendees:  a 
fourth  in  1795,  where  the  goods  of  an  individual,  not  bankrupt,  were 
detained  several  years;  but  no  account  how  the  matter  was  finally 
settled:  and  two  other  like  instances  in  1794  and  1795.  And  Clark,  a 
Leicester  carrier,  also  mentioned  two  instances,  one  in  1775,  the 
other  afterguards,  of  retaining  the  goods  of  solvent  individuals  till 
they  paid  their  general  balance.  All  these  carriers,  who  had  fol- 
lowed their  occupation  from  twenty  to  thirty  years  and  upwards, 
deposed  generally  to  their  custom  of  retaining  goods  for  their 
general  balance  in  other  instances  as  well  as  in  those  particular- 
ized. It  was  left  to  the  jury  to  decide  whether  the  usage  were  so 
general  as  to  warrant  them  in  presuming  that  the  bankrupts  knew 
it,  and  understood  that  they  were  contracting  with  the  defendants  in 
conformity  to  it;  in  which  case  they  were  to  find  for  the  defendants: 


258  RUSHFORTH    V.    HADFIELD.  [CHAP.  I. 

otherwise  they  were  told  that  the  general  rule  of  law  would  entitle 
the  plaintiffs  to  a  verdict.  On  this  direction  the  jury  found  for  the 
plaintiffs ;  which  was  moved  to  be  set  aside  in  last  Michaelmas  term, 
as  a  verdict  against  all  the  evidence. 

Lord  Ellenborough,  C.J.  It  is  too  much  to  say  that  there  has 
been  a  general  acquiescence  in  this  claim  of  the  carriers  since  1775, 
merely  because  there  was  a  particular  instance  of  it  at  that  time. 
Other  instances  were  only  about  ten  or  twelve  years  back,  and  several 
of  them  of  very  recent  date.  The  question  however  results  to  this. 
What  was  the  particular  contract  of  these  parties?  And  as  the  evi- 
dence is  silent  as  to  any  express  agreement  between  them,  it  must  be 
collected  either  from  the  mode  of  dealing  before  practised  between 
the  same  parties,  or  from  the  general  dealings  of  other  persons  en- 
gaged in  the  same  emplojinent,  of  such  notoriety  as  that  they  might 
fairly  be  presumed  to  be  kno"^Ti  to  the  bankrupt  at  the  time  of  his 
dealing  with  the  defendants,  from  whence  the  inference  was  to  be 
drawn  that  these  parties  dealt  upon  the  same  footing  as  all  others 
did,  with  reference  to  the  knoTVTi  usage  of  the  trade.  But  at  least  it 
must  be  admitted  that  the  claim  now  set  up  by  the  carriers  is  against 
the  general  law  of  the  land,  and  the  proof  of  it  is  therefore  to  be  re- 
garded wdth  jealousy.  In  many  cases  it  would  happen  that  parties 
would  be  glad  to  pay  small  sums  due  for  the  carriage  of  former  goods, 
rather  than  incur  the  risk  of  a  great  loss  by  the  detention  of  goods  of 
value.  Much  of  the  evidence  is  of  that  description.  Other  instances 
again  were  in  the  case  of  solvent  persons,  who  were  at  all  events 
liable  to  answer  for  their  general  balance.  And  little  or  no  stress 
could  be  laid  on  some  of  the  more  recent  instances  not  brought  home 
to  the  knowledge  of  the  bankrupt  at  the  time.  Most  of  the  e\'idence 
therefore  is  open  to  observation.  If  indeed  there  had  been  eiddence 
of  prior  dealings  between  these  parties  upon  the  footing  of  such  an 
extended  lien,  that  would  have  furnished  good  e\'idence  for  the  jury 
to  have  found  that  they  continued  to  deal  upon  the  same  terms. 
But  the  question  for  the  \\i\y  here  was,  whether  the  evidence  of  a 
usage  for  the  carriers  to  retain  for  their  balance  were  so  general  as 
that  the  bankrupt  must  be  taken  to  have  knowm  and  acted  upon  it? 
And  they  have  in  effect  found  either  that  the  bankrupt  knew  of  no 
such  usage  as  that  which  was  given  in  evidence,  or  knowing,  did  not 
adopt  it.  And  growing  liens  are  always  to  be  looked  at  ^\•ith  jealousy, 
and  require  stronger  proof.  They  are  encroachments  upon  the  com- 
mon law.  If  they  are  encouraged,  the  practice  vn\\  be  continually 
extending  to  other  traders  and  other  matters.  The  carrier  will  be 
claiming  a  lien  upon  a  horse  sent  to  him  to  be  shod.  Carriages  and 
other  things  which  require  frequent  repair  will  be  detained  on  the 
same  claim ;  and  there  is  no  saying  where  it  is  to  stop.  It  is  not  for  the 
convenience  of  the  public  that  these  liens  should  be  extended  further 
than  they  are  already  established  by  law.    But  if  any  particular 


CHAP.  I.]  RUSHFORTH    V.    HADFIELD.  *  259 

nconvenience  arise  in  the  course  of  trade,  the  parties  may,  if  they 
iiink  proper,  stipulate  with  their  customers  for  the  introduction  of 
iuch  a  hen  into  their  dealings.  But  in  the  absence  of  any  evidence  of 
that  sort  to  affect  the  bankrupt,  I  think  the  jury  have  done  right  in 
negativing  the  lien  claimed  by  the  defendants  on  the  score  of  general 
usage. 

Grose,  J.  This  lien  is  attempted  to  be  set  up  by  the  defendants, 
not  upon  the  ground  of  any  particular  contract  or  previous  transac- 
tions between  them  and  the  bankrupt,  but  on  the  ground  of  previous 
transactions  between  them  and  other  parties,  and  between  other 
carriers  and  their  customers.  And  it  is  admitted  that  the  question 
upon  this  evidence  was  properly  left  to  the  jury,  that  they  might 
find  a  verdict  for  the  defendants,  if  the  usage  for  the  carriers  to 
retain  for  their  balance  of  account  were  so  general  as  that  they  must 
conclude  that  these  parties  contracted  with  the  knowledge  and 
adoption  of  such  usage.  The  jury  have  found  in  the  negative.  And 
I  take  it  to  be  sound  law,  that  no  such  lien  can  exist  except  by  the 
contract  of  the  parties  expressed  or  implied. 

Lawrence,  J.  The  most  which  can  be  said  on  the  part  of  the 
defendants  is,  that  there  was  evidence  which  might  have  warranted 
the  jury  to  find  the  other  way;  but  it  was  for  them  to  decide.  This  is 
a  point  which  the  carriers  need  not  be  so  solicitous  to  establish.  It  is 
agreed  that  they  have  a  lien  at  common  law  for  the  carriage  price  of 
each  particular  article.  If  then  it  be  not  convenient  for  the  con- 
signee to  pay  for  the  carriage  of  the  specific  goods  at  the  time  of 
delivery,  it  is  very  easy  for  the  carriers  to  stipulate  that  they  shall 
have  a  lien  for  their  balance  upon  any  other  goods  which  they  may 
thereafter  carry  for  him.  It  is  not  fit  to  encourage  persons  to  set  up 
liens  contrary  to  law.  The  carriers'  convenience  certainly  does  not 
require  any  extension  of  the  law;  for  the}'  have  already  a  lien  for  the 
carriage  price  of  the  particular  goods,  and  if  they  choose  voluntarily 
to  part  with  that,  without  such  a  stipulation  as  I  have  mentioned, 
there  is  no  reason  for  giving  them  a  more  extensive  lien  in  the  place 
of  that  which  they  were  entitled  to.  I  should  not  be  sorry  therefore 
if  it  were  found  generally  that  they  have  no  such  lien  as  that  now 
claimed  upon  the  ground  of  general  usage. 

Le  Blanc,  J.  This  is  a  case  where  a  jury  might  well  be  jealous  of  a 
general  lien  attempted  to  be  set  up  against  the  policy  of  the  common 
law,  which  has  given  to  carriers  only  a  lien  for  the  carriage  price  of 
the  particular  goods.  The  party  therefore  who  sets  up  such  a  claim 
ought  to  make  out  a  very  strong  case.  But  upon  weighing  the 
evidence  which  was  given  at  the  trial,  I  do  not  think  that  this  is  a 
case  in  which  the  court  are  called  upon  to  hold  out  any  encourage- 
ment to  the  claim  set  up,  by  overturning  what  the  jury  have  done, 
after  having  the  whole  matter  properly  submitted  to  them. 

Rule  discharged. 


260  •  ROBINSON    V.    WALTER.  [CHAP.  I. 

C  Liens  on  Chattels  delivered  without  the  Authority  of  the  Owner. 


ROBINSON  V.  WALTER. 

3  Bulst.  269.     1616. 

The  defendant  kept  a  common  inn.  A  stranger  brought  the  plain- 
tiff's horse  to  the  inn,  there  set  him  for  some  time,  and  afterwards 
went  away.  The  question  was  whether  the  defendant  was  justified 
in  refusing  to  dehver  the  horse  to  the  plaintiff,  until  the  defendant 
was  satisfied  for  his  charges  for  keeping  the  horse. 

MouNTAGUE,  Chief  Justice.  Where  one  is  hired  to  serve,  there  he 
shall  not  wage  his  law,  because  compellable.  Communia  hospitia  are 
compellable  to  receive  guests  and  their  horses;  and  so  he  is  to  answer 
for  them  which  are  brought  thither;  the  custom  of  London  is  good 
and  reasonable,  how  long  to  stay,  not  till  he  eats  out  more  than  his 
head;  the  innh older  may  sell  him  presently,  and  this  is  justifiable. 
Here  in  this  case,  the  innkeeper  said  to  the  plaintiff,  Prove  the  horse 
\o  be  yours,  pay  for  his  meat,  and  you  shall  have  him.  This  is  no 
ienial,  nor  yet  any  conversion,  he  claims  no  property  at  all;  he  only 
detains  the  horse,  till  he  be  satisfied  for  his  meat,  and  so  he  may  well 
do  by  the  law;  he  may  keep  him  till  he  be  paid  for  his  meat,  because 
he  is  compellable  at  the  first  to  receive  him. 

DoDDERiDGE,  Justicc.  One  who  hath  no  keeping  for  his  horse,  doth 
devise  this  way  to  send  his  man  with  him  to  an  inn,  and  to  let  him 
stand  there,  and  afterwards  to  come  thither  himself,  and  of  the  inn- 
keeper to  demand  his  horse,  and  upon  his  refusal,  to  bring  his  action 
upon  the  case;  this  is  a  fine  trick  for  the  plaintiff  to  have  his  horse 
kept,  and  to  give  the  innkeeper  nothing  for  the  same;  but  instead  of 
paying  of  him  for  his  meat,  to  pay  him  with  an  action,  which  he  hatl 
no  cause  so  to  do,  as  this  case  here  is,  the  innkeeper  may  well  justify 
the  keeping  of  his  horse  till  he  do  pay  him  for  his  meat,  which  is  a' 
he  desires  to  have. 

Haughton,  Justice,  differed  in  opinion.  The  party  being  the  true 
o"UTier  of  the  horse,  hath  no  other  way  to  provide  for  himself  but  this. 
The  innkeeper  hath  his  proper  remedy  against  him  who  brought  and 
left  the  horse  there  for  his  meat,  and  for  him  thus  to  prejudice  the 
owTier  of  the  horse,  by  the  wrong  of  another,  this  will  be  very  incon- 
venient. 

Croke,  Justice.  If  a  stranger  takes  my  cattle,  and  puts  them  into 
the  ground  of  another,  he  may  well  keep  them  till  I  pay  him  for  their 
meat  and  hurt  there  done.  If  a  man's  horse  be  stolen,  and  brought 
unto  an  inn,  or  if  a  man  lends  his  horse  to  one  for  a  day,  and  he  keeps 
him  three  or  four  days,  the  innkeeper  here  was  in  no  fault  at  all.  If 


CHAP.  I.]  ROBINSON    V.    WALTER.  261 

the  horse  was  stolen  and  brought  thither,  he  cannot  charge  the  inn- 
keeper with  this,  but  he  which  brought  him  thither,  and  there  left 
him.  Here  the  innkeeper  hath  done  no  wrong  at  all,  the  o^\Tier  is  to 
satisfy  him  for  his  meat,  because  he  was  here  compellable  to  receive 
him. 

MouNTAGUE.  If  a  stranger  takes  the  horse  of  another,  and  sets 
him  up  in  an  inn,  if  the  horse  was  there  stolen  away,  the  party  may 
have  his  remedy  against  the  innkeeper. 

If  a  man's  servant  carries  his  master's  horse  to  an  inn,  and  there 
leaves  him,  and  he  is  stolen  away;  an  action  lieth  here  for  the  master, 
as  well  as  for  the  servant,  against  the  innkeeper. 

DoDDERiDGE  agreed  this  to  be  so,  if  he  knew  him  to  be  his  servant; 
the  o\\Tier  is  to  pay  for  his  meat,  and  it  would  be  a  very  mischievous 
thing  if  it  should  be  otherwise;  for  when  a  man  hath  lost  his  horse,  he 
is  to  look  for  him,  and  when  he  hath  found  him  in  the  inn,  if  he  should 
not  be  enforced  to  pay  for  his  meat,  this  would  be  a  trick,  to  have  his 
horse  kept  for  nothing,  and  to  have  him  brought  by  his  servant  to  the 
inn.  The  owner  hath  a  benefit,  meat  for  his  horse,  and  for  the  which 
he  ought  to  pay. 

Curia.  The  pleading  here  is  not  good,  therefore  they  did  ad\ase 
the  party  to  plead  to  issue,  and  so  to  go  to  trial,  and  so  judgment 
may  then  be  given  upon  the  event,  but  as  the  case  here  is;  Croke, 
DoDDERiDGE,  and  MouNTAGUE,  clear  of  opinion  for  the  defendant 
against  the  plaintiff. 

Haughton  differed  from  them  in  opinion  for  the  plaintiff. 

And  so  upon  this  action  here  brought,  and  upon  the  demurrer  to  the 
defendant's  plea,  the  opinion  of  the  court  was  against  the  plaintiff. 

Note.  —  In  Yorke  v.  Grenaugh,  2  Ld.  Raym.  866,  an  innkeeper 
asserted  a  lien  on  a  horse  delivered  to  him  without  the  authority  of 
the  owner.  In  the  report  is  the  following  passage:  "  And  Holt,  Chief 
Justice,  cited  the  case  of  the  Exeter  carrier;  where  A  stole  goods,  and 
delivered  them  to  the  Exeter  carrier,  to  be  carried  to  Exeter,  the 
right  owner  finding  the  goods  in  possession  of  the  carrier,  demanded 
them  of  him,  upon  which  the  carrier  refused  to  deliver,  without  being 
paid  for  the  carriage.  The  owner  brought  trover,  and  it  was  held, 
that  he  might  justify  detaining  against  the  right  owner  for  the  car- 
riage; for  when  A  brought  them  to  him,  he  was  obliged  to  receive 
them  and  carry  them ;  and  therefore  since  the  law  compelled  him  to 
carry  them,  it  will  give  him  remedy  for  the  premium  due  for  the 
carriage.  The  same  reason  holds  in  this  case." 


262  BROADWOOD    V.    GRANARA.  [CHAP.  I. 

BROADWOOD  v.  GRANARA. 

10  Exch.  417.     1854. 

This  was  a  case  stated  for  the  opinion  of  the  court  by  consent  of 
the  plaintiffs  and  defendant,  and  by  order  of  a  judge. 

The  declaration  stated  that  the  defendant  converted  to  his  own 
use  the  plaintiffs'  goods,  that  is  to  say,  a  boudoir  grand  pianoforte. 
The  defendant  pleaded,  first,  not  guilty;  secondly,  that  the  goods 
were  not  the  plaintiffs'.  Upon  which,  issues  were  joined. 

The  plaintiffs  are,  and  at  the  time  of  the  alleged  conversion  were, 
in  partnership  as  manufacturers  of  pianofortes,  in  Great  Pulteney 
Street,  London.  The  defendant  was,  and  is,  the  proprietor  of  an  inn 
or  hotel,  called  the  Hotel  de  I'Europe,  in  Leicester  Place,  Leicester 
Square. 

In  March,  1853,  a  Monsieur  Hababier,  a  foreigner  and  professional 
pianist,  went  to  reside  at  the  defendant's  hotel,  and  remained  there, 
occupying  apartments,  and  occasionally  taking  his  meals  in  the 
house,  for  some  months.  On  the  28th  of  March,  Monsieur  Hababier, 
then  residing  at  the  hotel,  as  before  mentioned,  went  to  the  manu- 
factory of  the  plaintiffs  in  Great  Pulteney  Street,  and  requested  the 
use  or  loan  of  a  grand  pianoforte.  It  has  been,  and  is,  usual  for  the 
plaintiffs  to  lend  pianofortes  to  musical  artists  without  charge;  and 
in  compliance  with  this  request  a  grand  pianoforte  was  sent  to  the 
before-mentioned  hotel  for  the  use  of  Monsieur  Hababier.  This 
pianoforte  remained  at  the  hotel  in  possession  of  Monsieur  Hababier, 
in  his  apartments,  until  the  9th  of  June  following,  when  it  was  taken 
away  and  replaced  by  a  boudoir  grand  pianoforte,  also  supplied  by 
the  plaintiffs  without  charge  to  Monsieur  Hababier. 

Monsieur  Hababier  remained  at  the  hotel  until  the  27th  of  June, 
and  during  that  time  incurred  a  bill  for  the  use  of  the  apartments  and 
for  board,  hire  of  carriages,  and  other  accommodation,  to  a  consider- 
able amount.  Some  payments  were  made  on  account,  but  at  the  time 
of  the  demand  and  refusal  hereinafter  mentioned,  there  was  a  balance 
due  from  him  to  the  defendant  of  46Z.  3s.  5d.,  consisting  in  part  of 
use  of  apartments,  etc.,  after  the  9th  of  June. 

On  the  27th  of  June,  the  plaintiffs'  clerk  applied  to  the  defendant 
for  the  last-mentioned  pianoforte,  and  requested  that  it  might  be 
delivered  to  him  for  the  plaintiffs.  He,  at  the  same  time,  handed  to 
the  defendant  a  written  authority  from  Monsieur  Hababier  to  deliver 
it  to  the  plaintiffs.  The  defendant  declined  to  deliver  up  the  piano- 
forte. On  the  following  day,  the  clerk  again  went  to  the  house  of  the 
defendant,  taking  with  him  a  van  and  two  porters,  and  again  de- 
manded the  pianoforte.  On  this  occasion,  the  defendant  asked  him  if 
he  had  brought  any  money,  and  being  answered  in  the  negative,  said, 
"  Unless  Messrs.  Broadwood  pay  my  bill  for  the  rent  of  the  apart- 
ments, I  will  not  give  up  the  piano." 


CHAP.  I.]  BROADWOOD    V.    GRANARA.  263 

It  is  admitted,  for  the  purposes  of  this  case,  that  the  hotel  of  the 
defendant  was,  and  is,  an  inn;  and  that  the  defendant  was,  and  is, 
entitled  to  the  rights  of  an  innkeeper. 

The  defendant,  at  all  times,  knew  the  pianoforte  in  question  was 
not  the  property  of  Monsieur  Hababier,  but  that  of  the  plaintiffs; 
and  the  plaintiffs  at  all  times  knew  that  the  said  Monsieur  Hababier 
was  stopping  at  an  hotel.  The  balance  due  to  the  defendant  from 
Monsieur  Hababier  is  still  unpaid. 

The  question  for  the  opinion  of  the  court  is,  whether,  under  the 
above  circumstances,  the  plaintiffs  are  entitled  to  maintain  the 
action.  If  the  court  shall  be  of  opinion  that  the  action  is  maintain- 
able, the  verdict  is  to  be  entered  for  the  plaintiffs,  with  lOOZ.  dam- 
ages. If  the  court  shall  be  of  opinion  that  the  defendant  had  a  right 
to  detain  the  pianoforte,  then  the  verdict  is  to  be  entered  for  the 
defendant. 

Pollock,  C.  B.  —  We  are  all  of  opinion  that  the  lien  claimed  by 
the  defendant  cannot  prevail.  I  need  not  go  through  the  series  of 
decisions  referred  to,  or  the  propositions  propounded  at  the  bar, 
because  the  limited  ground  on  which  I  think  the  plaintiffs  entitled 
to  judgment  is  this  —  that  there  is  no  case  which  decides  that  an  inn- 
keeper has  a  right  of  lien  under  such  circumstances  as  these.  This 
is  the  case  of  goods,  not  brought  to  the  inn  by  a  traveller  as  his  goods, 
either  upon  his  coming  to  or  whilst  sta^dng  at  the  inn,  but  they  are 
goods  furnished  for  his  temporary  use  by  a  third  person,  and  known 
by  the  innkeeper  to  belong  to  that  person.  I  shall  not  inquire,  whether, 
if  the  pianoforte  had  belonged  to  the  guest,  the  defendant  would  have 
had  a  Hen  on  it.  It  is  not  necessary  to  decide  that  point,  for  the  case 
finds  that  it  was  known  to  the  defendant  that  the  pianoforte  was  not 
the  property  of  the  guest,  and  that  it  was  sent  to  him  for  a  special 
purpose.  Under  these  circumstances,  I  am  clearly  of  opinion  that  the 
defendant  has  no  lien. 

Parke,  B.  —  I  am  of  the  same  opinion.  It  is  not  necessary  to 
advert  to  the  decisions  on  the  subject  of  an  innkeeper's  lien,  because 
this  is  not  the  case  of  goods  brought  hij  a  guest  to  an  inn  in  that  sense  in 
which  the  innkeeper  has  a  lien  upon  them ;  but  it  is  the  case  of  goods 
sent  to  the  guest  for  a  particular  purpose,  and  known  by  the  inn- 
keeper to  be  the  property  of  another  person.  It  therefore  seems  to 
me  that  there  is  no  pretence  for  saying  that  the  defendant  has  any 
lien.  The  principle  on  which  an  innkeeper's  lien  depends  is,  that  he  is 
bound  to  receive  travellers  and  the  goods  which  they  bring  with  them 
to  the  inn.  Then,  inasmuch  as  the  effect  of  such  lien  is  to  give  him  a 
right  to  keep  the  goods  of  one  person  for  the  debt  of  another,  the  lien 
cannot  be  claimed  except  in  respect  of  goods  which,  in  performance 
of  his  duty  to  the  public,  he  is  bound  to  receive.  The  ol)ligation  to 
receive  depends  on  his  public  profession.  If  he  has  only  a  stabU;  for  a 
boise  he  is  not  bound  to  receive  a  carriage.  There  was  no  ground 


264  ROBINS    V.    GRAY.  [CHAP.  I. 

whatever  for  saying  that  the  defendant  was  under  an  obligation  to 
receive  this  pianoforte. 

Alderson,  B.  —  I  am  of  the  same  opinion. 

Platt,  B.  —  The  case  of  Johnson  v.  Hill,  3  Stark.  172,  shews  the 
principle  of  law  which  is  applicable  to  the  present  case.  If  a  person 
brings  the  hoi-se  of  another  to  an  inn,  the  innkeeper  may  detain  it 
from  the  o\vner  until  its  keep  is  paid.  But  if,  as  the  jury  found  in 
Johnson  v.  Hill,  the  innkeeper  knew  that  the  person  bringing  the 
horse  illegally  got  possession  of  it,  and  therefore  had  no  right  to 
pledge  it  for  his  debt,  then  the  lien  does  not  attach.  Here  the  plain- 
tiffs send  a  pianoforte  to  the  room  of  the  guest,  and  the  innkeeper  well 
knew  that  it  was  not  the  property  of  the  guest,  and  that  it  was  not 
competent  for  him  to  pledge  it  for  a  debt  of  his  own.  Then,  how  can 
it  be  said  that  any  act  of  the  plaintiffs  gave  the  defendant  a  right  to 
detain  the  pianoforte  for  his  guest's  debt?  The  plaintiffs  might  have 
taken  it  away  the  next  minute.  The  case  does  not  fall  mthin  the 
principles  of  law  relating  to  the  lien  of  innkeepers. 

Judgment  for  the  'plaintiffs. 


ROBINS  V.   GRAY 

[1895]  2  Q.  B.  501. 

Appeal  from  the  judgment  of  Wills,  J.,  in  an  action  tried  without 
a  jury. 

The  action  was  brought  to  recover  from  the  defendant,  an  inn- 
keeper, certain  sewing-machines,  the  property  of  the  plaintiffs,  which 
they  alleged  were  wrongfully  detained  by  the  defendant. 

The  plaintiffs  were  a  firm  of  dealers  in  sewing-machines  and  other 
articles.  In  1894  they  had  in  their  emplojTiient  as  a  commercial 
traveller  one  Green,  who  canvassed  for  orders  and  sold  their  goods 
upon  commission.  In  April,  1894,  Green,  for  the  purposes  of  his 
business  as  such  commercial  traveller,  went  to  stay  at  the  defend- 
ant's hotel,  taking  with  him  sewing-machines,  the  property  of  his 
employers,  for  the  purpose  of  selling  them  to  customers  in  the  neigh- 
bourhood. He  remained  there  until  the  end  of  ivXy.  Whilst  there  the 
plaintiffs  sent  to  him  from  time  to  time  more  sewdng-machines  for  the 
same  purpose.  At  the  end  of  July  Green  left  the  hotel  without  paying 
his  bill  for  board  and  lodging,  and  he  left  there  some  of  the  machines 
so  sent.  Before  the  defendant  received  into  his  hotel  the  machines 
so  sent,  and  before  Green  had  incurred  his  debt  for  board  and  lodg- 
ing, the  defendant  had  been  expressly  told  by  the  plaintiffs  that  the 
m.achines  were  their  property,  and  not  the  property  of  Green;  but  he 
received  the  goods  into  his  hotel  as  Green's  baggage.  The  defendant 
claimed  a  lien  for  the  amount  of  Green's  debt  upon  the  machines  left 
by  him  at  the  hotel. 


CHAP.  I.]  ROBINS  V.    GRAY.  265 

On  the  above  facts  the  learned  judge  gave  judgment  for  the 
defendant. 

The  plaintiffs  appealed. 

Lord  Esher,  M.R.  I  have  no  doubt  about  this  case.  I  protest 
against  being  asked,  upon  some  new  discovery  as  to  the  law  of  inn- 
keeper's lien,  to  disturb  a  well-known  and  very  large  business  carried 
on  in  this  country  for  centuries.  The  duties,  liabilities,  and  rights  of 
innkeepers  with  respect  to  goods  brought  to  inns  by  guests  are 
founded,  not  upon  bailment,  or  pledge,  or  contract,  but  upon  the 
custom  of  the  realm  -with  regard  to  innkeepers.  Their  rights  and  lia- 
bilities are  dependent  upon  that,  and  that  alone;  they  do  not  come 
under  any  other  head  of  law.  What  is  the  liability  of  an  innkeeper 
in  this  respect?  If  a  traveller  comes  to  an  inn  with  goods  which  are 
his  luggage  —  I  do  not  say  his  personal  luggage,  but  his  luggage  — 
the  innkeeper  by  the  law  of  the  land  is  bound  to  take  him  and  his 
luggage  in.  The  innkeeper  cannot  discriminate  and  say  that  he  will 
take  in  the  traveller  but  not  his  luggage.  If  the  traveller  brought 
something  exceptional  which  is  not  luggage  —  such  as  a  tiger  or  a 
package  of  djmamite  —  the  innkeeper  might  refuse  to  take  it  in;  but 
the  custom  of  the  realm  is  that,  unless  there  is  some  reason  to  the 
contrary  in  the  exceptional  character  of  the  things  brought,  he  must 
take  in  the  traveller  and  his  goods.  He  has  not  to  inquire  whether  the 
goods  are  the  property  of  the  person  who  brings  them  or  of  some 
other  person.  If  he  does  so  inquire,  the  traveller  may  refuse  to  tell 
him,  and  may  say,  "What  business  is  that  of  yours?  I  bring  the 
goods  here  as  my  luggage,  and  I  insist  upon  j^our  taking  them  in"; 
or  he  may  say,  "  They  are  not  my  property,  but  I  bring  them  here  as 
my  luggage,  and  I  insist  upon  your  taking  them  in";  and  then  the 
innkeeper  is  bound  by  law  to  take  them  in.  Again,  suppose  the 
things  brought  are  such  things  as  the  innkeeper  is  not  bound  to  take 
in,  he  may,  as  I  have  said,  refuse  to  take  them  in  although  the 
traveller  demands  that  they  shall  be  taken  in  as  his  luggage;  but  if 
after  that  the  innkeeper  changes  his  mind  and  does  take  them  in, 
then  they  are  in  the  same  position  as  goods  properly  offered  to  the 
innkeeper  according  to  the  custom  of  the  realm.  Then  the  inn- 
keeper's liability  is  not  that  of  a  bailee  or  pledgee  of  goods;  he  is 
bound  to  keep  them  safely.  It  signifies  not,  so  far  as  that  obligation 
is  concerned,  if  they  are  stolen  by  burglars,  or  by  the  servants  of  the 
inn,  or  by  another  guest;  he  is  liable  for  not  keeping  them  safely 
unless  they  are  lost  by  the  fault  of  the  traveller  himself.  That  is  a 
tremendous  liability:  it  is  a  liability  fixed  upon  the  innkeeper  by  the 
fact  that  he  has  taken  the  goods  in;  and  by  law  he  has  a  lien  upon 
them  for  the  expense  of  keeping  them  as  well  as  for  the  cost  of  the 
food  and  entertainment  of  the  traveller.  By  law  that  lien  can  be 
enforced,  not  only  against  the  person  who  has  brought  the  goods 
into  the  inn,  but  against  the  real  and  true  owner  of  them.  That  has 


266  ROBINS  V.    GRAY.  [CHAP.  I. 

been  the  law  for  two  or  three  hundred  years;  but  to-day  some  express 
sions  used  by  judges,  and  some  questions  —  immaterial,  as  it  seemf 
to  me  —  which  have  been  left  to  juries,  are  relied  on  to  establish  thai 
if  the  innkeeper  knows  that  the  goods  are  not  the  goods  of  the  person 
who  brings  them  to  the  inn,  he  may  refuse  to  take  them  in;  or,  if  he 
does  take  them  in,  he  has  no  lien  upon  them.  One  cannot  help  asking, 
What  is  his  liability  supposed  to  be  if  he  does  take  in  goods  under  such 
circumstances?  It  must  be  borne  in  mind  that  goods  brought  into 
an  inn  are  not  exclusively  in  the  possession  of  the  innkeeper;  the 
person  who  brings  them  may  deal  with  them :  he  may  take  them  out 
of  a  box  in  a  room  or  passage  without  the  knowledge  of  the  innkeeper, 
though  the  latter  is  bound  to  see  that  no  one  else  interferes  with 
them.  Now,  is  there  any  decided  case  in  which  it  has  been  held  that, 
although  goods  have  been  brought  to  an  inn  as  the  luggage  of  the 
traveller  and  received  as  such  by  the  innkeeper,  he  has  no  lien  upon 
them  if  he  knows  that  they  are  not  the  goods  of  the  traveller?  There 
is  not  one  such  case  to  be  found  in  the  books.  It  was  said  that 
Broadwood  v.  Granara,  10  Ex.  417,  was  such  a  case.  But  there  the 
proposition,  that  if  a  guest  brings  goods  into  an  inn  as  his  luggage 
they  must  be  treated  as  if  they  were  his  goods,  was  fully  recognised. 
The  judges  held  in  that  case  that  a  piano,  not  brought  to  the  inn  by 
the  guest  as  his  luggage,  but  sent  in  by  a  tradesman  for  the  guest  to 
play  upon  during  his  stay  at  the  inn,  was  not  offered  to,  nor  taken 
possession  of  by,  the  innkeeper  under  the  custom  of  the  realm  as  the 
luggage  of  the  guest,  and  therefore  that  the  piano  was  not  subject  to 
the  innkeeper's  lien.  Whether  we  should  have  agreed  with  that  deci- 
sion is  immaterial.  The  case  was  expressly  decided  on  the  ground 
that  the  law  of  innkeepers  did  not  apply.  It  is,  therefore,  no  author- 
ity  in  the  case  now  before  us,  where,  as  the  learned  judge  in  th( 
court  below  has  found,  the  goods  were  brought  to  the  inn  as  the  goodt 
of  the  traveller  and  accepted  as  his  goods  by  the  innkeeper.  If  we 
were  to  accede  to  the  argument  for  the  appellants  we  should  be 
making  a  new  law,  and  our  decision  would  produce  in  very  many 
cases  great  confusion  and  hardship.  I  am  of  opinion  that  an  inn- 
keeper is  bound  to  take  in  goods  with  which  a  person  who  comes  to 
the  inn  is  travelling  as  his  goods,  unless  they  are  of  an  exceptional 
character;  that  the  innkeeper's  lien  attaches,  and  that  the  question 
of  whose  property  the  goods  are,  or  of  the  innkeeper's  knowledge 
as  to  whose  property  they  are,  is  imjuaterial.  This  appeal  should, 
therefore,  be  dismissed. 

Kat,  L.J.  In  this  case  the  appellants  bring  their  action  for  the 
detention  of  certain  sewing-machines  of  which  they  are  the  owners. 
The  defence  is,  "I  am  an  innkeeper;  the  goods  in  question  came  into 
my  possession  as  the  goods  of  a  guest  at  my  inn,  and  I  have  a  lien 
upon  them  for  the  unpaid  bill  of  that  guest."  Replication,  "You 
knew  that  they  were  not  his  goods;  you  had  notice  that  they  did  not 


CHAP.  I.]  ROBINS  V.    GRAY.  267 

belong  to  him,  but  that  they  belonged  to  us,  the  plaintiffs."  The 
question  is,  whether  that  is  a  good  replication.  The  facts  are:  The 
appellants'  traveller  went  to  the  inn  taking  some  sewing-machines 
with  him,  and  stayed  there.  Whilst  there  other  machines  were  sent 
to  him  b}^  his  employers,  and  those  machines  were  received  by  the 
innkeeper,  and  were  taken  care  of  byJiim,  and  were  in  his  possession. 
The  traveller  left  without  parang  his  bill  for  board  and  lodging  at 
the  inn.  I  agree  ■with  Wills,  J.,  that  the  fact  that  some  of  the 
machines  were  sent  to  the  inn  after  the  traveller  had  gone  there  does 
not  make  any  difference;  because  the  innkeeper  accepted  them  as 
he  had  accepted  the  machines  originally  brought  to  the  inn  by  the 
traveller  —  that  is,  as  the  goods  of  the  traveller  —  I  do  not  mean  his 
property,  because  the  innkeeper  knew  that  they  were  the  property, 
not  of  the  traveller,  but  of  his  emploj^ers.  Now,  we  have  had  an 
elaborate  argument,  and  various  cases  have  been  cited  in  support 
of  the  appellants'  case.  We  asked  counsel  if  he  knew  of  a  single  case 
in  which  it  had  been  held  that  an  innkeeper  could  refuse  to  take  in 
goods  of  an  ordinary  description  brought  to  his  inn  by  a  commercial 
traveller  for  sale  in  the  neighbourhood.  No  case  of  that  kind  has  been 
cited  or  could  be  found,  although  this  business  of  commercial  travel- 
lers has  been  carried  on  for  a  very  great  length  of  time,  and  so  largely 
that  there  is  scarcely  an  inn  in  England  to  which  commercial  travel- 
lers do  not  go  with  the  goods  of  their  employers.  That  fact  is  sug- 
gestive in  considering  the  contention  now  put  forward.  Further, 
there  is  no  case  to  be  found  in  the  books  to  shew  that  an  innkeeper 
would  not  be  liable  in  the  ordinary  way  for  the  loss  of  such  goods  so 
brought  to  his  inn  by  a  commercial  traveller,  and  so  taken  in  by  him- 
self. It  is,  therefore,  clear  that,  if  a  commercial  traveller  goes  to  an 
inn  with  goods  as  his  luggage  which  are  ordinary  goods  for  sale 
of  a  commercial  traveller,  and  the  innkeeper  takes  him  and  his  goods 
in,  the  innkeeper's  liability  in  respect  of  those  goods  would  be  the 
same  as  in  respect  of  the  personal  luggage  of  the  traveller.  That  being 
undoubted,  we  have  to  consider  whether  the  innkeeper's  lien  is  de- 
feated by  reason  of  the  fact  that  when  he  took  the  goods  in  he  knew, 
or  had  had  notice,  that  they  were  the  property,  not  of  the  commercial 
traveller,  but  of  his  employers.  The  law  is  stated  in  Robinson  v. 
Walter,  3  Bulstr.  269,  by  Dodderidge,  J.,  when  the  case  first  came 
before  him,  thus:  "This  is  a  common  inn,  and  the  defendant  a  com- 
mon innkeeper,  and  this  his  retainer  here  is  grounded  upon  the  gen- 
eral custom  of  the  land :  he  is  to  receive  all  guests  and  horses  that 
come  to  his  inn :  he  is  not  bound  to  examine  who  is  the  true  owner  of 
the  horse  brought  to  his  inn;  he  is  bound,  as  he  is  an  innkeeper,  to 
receive  them,  and  therefore  there  is  very  great  reason  for  him  to 
retain  him,  until  he  be  satisfied  for  his  meat  which  he  hath  eaten; 
and  that  the  true  o^vner  of  the  horse  cannot  have  him  away,  until 
he  have  satisfied  the  innkeeper  for  his  meat."  That  is  a  distinct  state- 


268  ROBINS    V.    GRAY.  [CHAP.  I. 

ment  that  this  law  of  an  innkeeper's  Hen  is  founded  on  the  general 
custom  of  the  land,  and  that  an  innkeeper  is  not  bound  to  inquire 
to  whom  the  goods  which  a  guest  brings  to  the  inn  belong,  but  is 
bound  to  receive  them. 

The  case  of  Broadwood  v.  Granara,  10  Ex.  417,  was  chiefly  relied 
on  for  the  appellants.  There  a  guest  staying  at  an  inn  went  to  a 
shopkeeper  in  the  town  and  hired  a  piano,  which  was  sent  to  him  at 
the  inn  for  the  purpose  of  playing  on  it  during  his  stay  there,  and  the 
innkeeper  knew  that  the  piano  was  so  hired  for  that  purpose,  and 
allowed  it  to  be  brought  into  his  inn.  The  court  held  that  he  had  no 
lien  upon  it;  but  the  ground  of  the  decision  is  stated  as  clearly  as  pos- 
sible in  the  judgments.  Pollock,  C.B.,  said  (at  p.  422) :  "  This  is  the 
case  of  goods,  not  brought  to  the  inn  by  a  traveller  as  his  goods,  either 
upon  his  coming  to  or  whilst  staying  at  the  inn,  but  they  are  goods 
furnished  for  his  temporary  use  by  a  third  person,  and  known  by  the 
innkeeper  to  belong  to  that  third  person.  I  shall  not  inquire  whether, 
if  the  pianoforte  had  belonged  to  the  guest,  the  defendant  would 
have  had  a  lien  on  it.  It  is  not  necessary  to  decide  that  point,  for  the 
case  finds  that  it  was  known  to  the  defendant  that  the  pianoforte  was 
not  the  property  of  the  guest,  and  that  it  was  sent  to  him  for  a  special 
purpose.  Under  these  circumstances,  I  am  clearly  of  opinion  that  the 
defendant  has  no  lien."  Parke,  B.  (at  p.  423)  said:  "It  is  not  neces- 
sary to  advert  to  the  decisions  on  the  subject  of  an  innkeeper's  lien, 
because  this  is  not  the  case  of  goods  brought  by  a  guest  to  an  inn  in  that 
sense  in  which  the  innkeeper  has  a  lien  upon  them;  but  it  is  the  case 
of  goods  sent  to  the  guest  for  a  particular  purpose,  and  known  by  the 
innkeeper  to  be  the  property  of  another  person.  It  therefore  seems 
to  me  that  there  is  no  pretence  for  sa>dng  that  the  defendant  has  any 
lien."  Then  follow  words  which  are  sufficient  to  determine  the  case 
before  us:  "The  principle  on  which  an  innkeeper's  lien  depends  is, 
that  he  is  bound  to  receive  travellers  and  the  goods  which  they  bring 
with  them  to  the  inn.  Then,  inasmuch  as  the  effect  of  such  lien  is  to 
give  him  a  right  to  keep  the  goods  of  one  person  for  the  debt  of  an- 
other, the  lien  cannot  be  claimed  except  in  respect  of  goods,  which,  in 
performance  of  his  duty  to  the  public,  he  is  bound  to  receive."  An 
analogous  case  to  that  was  put  by  the  Master  of  the  Rolls  during  the 
argument  of  the  present  case.  Suppose  a  jeweller  in  the  towii  sent, 
with  the  knowledge  of  the  innkeeper,  certain  jewels  to  a  guest  at  the 
inn  on  approval,  and  allowed  them  to  remain  in  the  inn  for  some 
days  —  could  the  innkeeper  claim  and  enforce  a  lien  upon  those 
jewels?  I  should  think  he  could  not,  because  they  were  sent  for  a 
special  temporary  purpose,  and  the  innkeeper  knew  it;  they  were, 
therefore,  not  sent  as  the  goods  —  I  do  not  mean  as  the  property  — 
of  the  guest ;  they  were  not  goods  which  he  was  likely  to  take  about 
with  him  as  his  luggage.  But,  in  the  case  before  us,  the  goods  were 
received  into  the  inn  as  the  kind  of  goods  with  which  the  guest  was 


CHAP.  I.]  ROBINS  V.    GRAY.  2G9 

accustomed  to  travel  in  his  employment  as  a  commercial  traveller; 
and  they  were  the  kind  of  goods  which  the  innkeeper  would  be  bound 
to  receive  without  inquiring  —  and  he  had  no  right  to  inquire  —  to 
whom  they  belonged.  If  we  were  to  hold  that  the  innkeeper  had  no 
lien  upon  them  we  should  be  effecting  a  complete  revolution  in  the 
custom  of  the  land,  in  accordance  with  which  an  innkeeper,  who 
receives  into  his  inn  commercial  travellers  \nth  the  goods  of  their 
employers  which  the  travellers  bring  there  in  the  course  of  their 
business,  is  accustomed  to  believe,  and  has  a  right  to  believe,  that  he 
has  a  lien  upon  those  goods. 

A.  L.  Smith,  L.J.  A  commercial  traveler  went  in  the  course  ol 
business  to  an  inn;  and,  according  to  the  finding  of  Wills,  J.,  he  took 
■with  him  goods  which  "were  of  a  kind  which  a  commercial  traveller 
would  in  the  ordinary  course  carry  about  with  him  to  the  inns  at 
which  he  put  up  as  part  of  the  ordi-narj'  apparatus  of  his  calling,  and 
which  the  innkeeper  would  consequently  be  bound  to  receive  into 
his  inn  and  to  take  care  of  while  he  was  there."  The  learned  judge 
finds  in  effect  that  the  goods  in  question  were  part  of  the  commercial 
traveller's  baggage,  and  goods  which  the  innkeeper  was  bound  b}-  the 
law  of  the  land  to  take  in,  and  to  absolutely  preserve  as  the  goods  of 
his  guest.  That  obligation  is  imposed  upon  him  by  the  custom  of  the 
realm.  In  consideration  of  that  obligation  there  is  given  to  him  — 
also  by  the  custom  of  the  realm  —  a  lien  upon  the  goods  for  the  value 
of  the  food  and  lodging  supplied  to  the  guest  during  the  time  he 
stays  at  the  inn.  I  cannot  do  better  than  read  what  Lopes,  L.J., 
said  in  Gordon  v.  Silber,  25  Q.  B.  D.  491,  at  pp.  492,  493:  "The  inn- 
keeper is  under  an  obligation  to  keep  the  goods  of  a  guest  received 
into  the  inn  safely  and  securely,  and  can  be  sued  and  made  liable  in 
damages  if  he  fails  in  this  respect.  As  a  compensation  for  the  burden 
thus  imposed  upon  him,  the  law  has  given  him  a  lien  upon  the  goods 
of  the  guest  until  he  discharges  the  expenses  of  his  lodging  and  food. 
If  the  guest  has  brought  goods  to  the  inn  to  which  he  has  no  title, 
this  will  not  deprive  the  innkeeper  of  his  lien,  because  he  is  obliged 
to  receive  the  guest  without  inquiries  as  to  his  title."  I  agree  with 
that;  it  is  good  law,  and  is  not  disputed  in  this  case;  nor  can  it  be  dis- 
puted, because  it  is  settled  by  authority.  But  it  is  said  that  the  law  so 
stated  does  not  apply  if  goods,  brought  to  an  inn  as  the  goods  and 
baggage  of  a  commercial  traveller,  are  not  his  property  but  the  prop- 
erty of  his  employers,  and  that  fact  is  known  to  the  innkeeper  when 
he  takes  the  goods  in.  Counsel  for  the  appellants  was  asked  what 
case  had  decided  that.  He  relied  on  Broadwood  v.  Granara,  10  Ex. 
417,  which,  he  said,  decided  that  the  innkeeper  had  no  lien  where 
goods  were  sent  to  an  inn,  and  he  knew  that  they  were  not  the  prop- 
erty of  the  person  staying  at  the  inn  to  whom  they  were  sent.  In  my 
view  the  case  did  not  decide  that  at  all,  because  the  piano  was  not 
sent  to  the  inn  as  the  guest's  luggage  or  baggage;  he  hired  it  in  the 


270     SINGER  MANUFACTURING  CO.  V.  LONDON  RAILWAY  CO.   [cHAP.  I. 

town,  and  it  was  sent  for  him  to  play  upon  whilst  he  stayed  at  the 
inn.  The  court  held  that  it  was  not  his  baggage  which  the  inn- 
keeper by  the  law  of  the  land  was  bound  to  receive.  Here  the 
sewing-machines  were  received  as  the  baggage  of  the  commercial 
traveller.  The  question  whether  he  was  able  to  pledge  them  or  not 
has  nothing  to  do  with  the  matter;  the  rights  and  liabilities  of  the 
innkeeper  depend  upon  the  custom  of  the  realm.  Some  expressions 
of  judges  were  relied  on  to  the  effect  that  an  innkeeper  had  a  lien 
upon  goods  brought  to  his  inn  by  a  guest,  if  the  innkeeper  did  not 
know  that  the  goods  were  not  the  property  of  the  guest,  but  were  the 
property  of  some  one  else.  There  is  no  decision,  however,  that  if  he 
did  know,  his  lien  was  gone.  The  illustration  may  be  put  of  goods 
received  by  an  innkeeper  of  which  one  half  belonged  to  the  guest  who 
brought  them,  and  the  other  half  to  some  one  else.  Suppose  the  inn- 
keeper received  all  the  goods  with  knowledge  of  the  fact :  could  it  be 
said  that  he  was  under  any  different  obligation  with  respect  to  the 
goods  which  were  the  guest's  and  those  which  were  not;  so  that,  as  to 
one  half,  his  obligation  was  to  keep  the  goods  safely  and  securely, 
and,  as  to  the  other,  only  to  take  due  care?  In  my  judgment,  the 
contention  made  on  behalf  of  the  appellants  fails,  and  I  agree  that 
this  appeal  should  be  dismissed. 

Appeal  dismissed. 

SINGER  MANUFACTURING  CO.  v.  LONDON 
RAILWAY  CO. 

[1894]  1  Q.  B.  833. 

Appeal  from  the  decision  of  the  judge  of  the  Southwark  County 
Court. 

The  plaintiffs  by  an  agreement  let  to  one  Woodman  a  sewing 
machine,  Woodman  undertaking  to  pay  to  them  a  rent  of  Is.  6c?.  per 
week  payable  weekly  in  advance,  and  it  was  agreed  that  at  any  time 
during  the  hire  Woodman  might  become  the  purchaser  of  the  ma- 
chine by  pajanent  of  the  price,  and  that  in  such  case  credit  should 
be  given  for  all  pajonents  previouslj^  made  under  the  agreement. 
Unless  and  until  a  purchase  was  effected,  the  machine  was  to  con- 
tinue the  sole  property  of  the  plaintiffs,  and  Woodman  was  to 
remain  bailee  only  of  it. 

In  May,  1893,  Woodman  deposited  the  sewing  machine  in  the 
cloak  room  belonging  to  the  defendants  at  Waterloo  Station,  and 
received  a  ticket  on  which  was  printed  among  other  conditions, 
"Articles  deposited  in  the  cloak  rooms  for  more  than  48  hours  will 
be  charged  Id.  extra  for  each  package  per  diem  for  the  first  calendar 
month,  and  2d.  per  week  or  part  of  a  week  for  the  second  and  third 
calendar  months.  .  .  .  Articles  left  in  the  cloak  rooms  for  twelve 


CHAP.  I.]    SINGER  MANUFACTURING  CO.  V.  LONDON  RAILWAY  CO.     271 

months  are  liable  to  be  sold,  and  the  company  will  not  hold  itself 
responsible  to  account  for  the  proceeds." 

Woodman  subsequently  made  default  in  the  payment  of  the 
weekly  rent,  and  in  October,  1893,  he  foi-warded  the  cloak-room 
ticket  to  the  plaintiffs.  The  defendants  refused  to  deliver  the  sew- 
ing machine  to  the  plaintiffs  until  they  were  paid  4s.,  which  was 
admitted  to  be  the  amount  of  their  charges  in  accordance  with  the 
condition  indorsed  on  the  cloak-room  ticket.  The  plaintiffs  then 
brought  this  action  to  recover  the  machine,  and  the  defendants 
counterclaimed  for  the  4s. 

The  county  court  judge  held  that  the  defendants  had  a  lien  on  the 
sewing  machine  in  respect  of  these  charges,  and  gave  judgmient  for 
them  on  claim  and  counterclaim.  He,  however,  gave  leave  to  appeal, 
and  the  plaintiffs  appealed. 

Mathew,  J.  I  think  that  this  appeal  must  be  dismissed. 

The  material  facts  are  these.  One  Woodman,  the  hirer  of  a  sewing 
machine,  deposited  it  at  the  cloak  room  belonging  to  the  defendants 
at  Waterloo  Station.  The  charges  for  which  the  defendants  now 
claim  a  lien  on  the  machine  were  incurred  in  respect  of  the  deposit  of 
the  article  there.  The  hirer,  it  would  appear,  after  a  time  made  up 
his  mind  not  to  release  the  article,  and  gave  notice  to  the  owners 
where  it  was.  It  was  held  by  Woodman  under  a  hire-purchase  agree- 
ment, and,  at  the  time  this  notice  was  given,  a  considerable  amount 
of  instalments  remained  unpaid.  Thereupon  the  plaintiffs  demanded 
the  possession  of  the  sewing  machine  from  the  defendants,  and  the 
defendants  claimed  a  lien  upon  it  for  their  charges  for  the  time  during 
which  the  article  had  remained  in  their  cloak  room.  Now,  it  could 
not  be  disputed  that  the  hirer  was  entitled,  while  he  was  in  possession 
of  this  article,  to  carry  it  by  train  and  to  incur  such  charges  in  respect 
of  it  as  a  passenger  by  train  does  incur.  Whatever  the  origin  of  the 
rule,  it  is  not  necessary  to  discuss  now;  but  it  is  clear  law  that  a 
carrier  would  have  on  the  article  so  carried  a  lien  for  the  charges 
incurred  in  respect  of  its  carriage.  The  sole  question  now  is  whether 
the  same  principle  applies  to  the  charges  incurred  in  respect  of  its 
safe  custody  in  the  cloak  room. 

The  history  of  the  cloak  room  at  railway  stations  is  supplied  by 
the  Railway  and  Canal  Traffic  Act,  1854.  There  it  is  enacted  that  a 
railway  company  shall  afford  reasonable  facilities  for  receiving,  for- 
warding, and  delivering  traffic.  One  of  the  most  reasonable  of  such 
facilities  is  the  cloak  room  at  railway  stations,  which  has  been  long 
established  in  accordance  with  that  Act  of  Parliament.  The  cloak 
room  at  Waterloo  Station  existed  under  that  Act  of  Parliament,  and 
it  is  said  the  principle  that  applies  to  the  contract  of  carriage  applies 
to  this  cloak  room,  which  is  provided  by  the  company  as  part  of  the 
reasonable  facilities  for  the  traffic  on  the  line.  It  seems  to  me  that 
that  argument  is  a  sound  one,  and  that  the  same  principle  applies. 


272      SINGER  MANUFACTURING  CO.  V.  LONDON  RAILWAY  CO.    [CHAP.  I. 

The  lien  which  the  defendants  had  as  carriers  they  had  also  as  owners 
of  the  cloak  room,  and  they  were  entitled,  in  my  opinion,  to  have 
payment  of  their  charges  in  respect  of  the  machine  before  delivery  to 
the  plaintiffs. 

That  was  the  opinion  of  the  county  court  judge.  I  see  no  reason 
to  differ  from  it,  and  the  appeal  must  be  dismissed. 

Collins,  J.  I  am  of  the  same  opinion.  I  think  the  sewing  machine 
in  this  case  must  be  taken  to  be  deposited  in  the  cloak  room  just  in 
the  same  way  and  subject  to  the  same  rights  as  if  it  were  entrusted 
to  a  carrier  for  the  purpose  of  carriage.  I  think,  that  having  regard 
to  modem  decisions  and  the  rising  standard  of  convenience  to  which 
railway  companies  are  obliged  to  conform,  the  cloak  room  is  now  to 
be  regarded  simply  as  one  of  the  necessary  and  reasonable  facilities 
incident  to  the  carriage  of  passengers  and  their  baggage.  The  com- 
pany are  common  carriers  of  passengers'  luggage,  and  if  they  carried 
this  sewing  machine  they  would  be  common  carriers  of  this  sewing 
machine,  and  would  have  a  lien  upon  it  against  all  the  world  in 
respect  of  the  cost  of  carrjdng  it.  I  do  not  see  why  they  should  not 
eciually  have  a  lien  for  receiving  it  and  warehousing  it  in  their  cloak 
room.  The  same  principle  lies  at  the  root  of  both.  They  are  under 
an  obligation  now  to  give  reasonable  facilities  for  the  receipt  and  safe 
custody  of  baggage,  and  it  was  in  the  performance  of  that  obligation 
that  they  received  this  sewing  machine.  Therefore,  on  that  ground 
it  seem.s  to  me  the  hen  is  good,  not  only  against  the  person  depositing 
it,  but  against  the  owner.  I  think  in  this  case  the  lien  may  also  be 
rested  on  another  ground ;  and  that  is,  that  the  person  who  deposited 
this  machine  was,  as  between  himself  and  the  ovmer  of  it,  entitled  to 
the  possession  of  it  at  the  time  he  deposited  it.  He  was  entitled  to  it 
under  a  contract  of  hire,  which  gave  him  the  right  to  use  it,  I  pre- 
sume, for  all  reasonable  pui-poses  incident  to  such  a  contract,  and 
among  them,  I  take  it,  he  acquired  the  right  to  take  the  machine 
with  him  if  he  travelled,  and  to  deposit  it  in  a  cloak  room  if  he  re- 
qijired  to  do  so.  In  the  course  of  that  reasonable  user  of  the  machine, 
and  before  the  contract  of  bailment  was  determined,  he  gave  rights 
to  the  railway  company  in  respect  of  the  custody  of  it.  I  think  those 
rights  must  be  good  against  the  owners  of  the  machine,  who  had  not 
determined  the  hire-purchase  agreement  at  the  time  that  those 
rights  were  acquired  by  the  railway  company.  If  the  o^umers  subse- 
quently determined  that  agreement,  they  must  determine  it  subject 
to  the  rights  which  had  been  acquired,  that  is,  subject  to  the  lien  of 
the  defendants  for  their  charges. 

I  think,  therefore,  that  on  both  those  grounds  the  judgment  of 
the  county  court  judge  is  right,  and  the  appeal  ought  to  be  dismissed. 

Appeal  dismissed;  leave  to  appeal  given. 


CHAP.  I.]  ROBINSON    V.    BAKER.  273 

ROBINSON   V.   BAKER. 

5  Cush.  (Mass.)  137.     1849. 

This  was  an  action  of  replevin,  for  six  hundred  barrels  of  flour, 
tried  before  Dewey,  J.,  and  reported  by  him  for  the  consideration  of 
the  whole  court.    The  material  facts  are  as  follows:  — 

The  plaintiff,  in  October,  184:7,  by  his  agent,  Joseph  B.Xjardner,  of 
Buffalo,  in  the  State  of  New  York,  purchased  six  hundred  barrels  of 
flour,  which  the  agent  caused  to  be  put  on  board  a  canal-boat  at 
Black  Rock,  on  the  23d  of  October,  1847,  to  be  transported  to  Albany. 
The  boat  was  owoied  by  a  company,  known  by  the  name  of  the  Old 
Clinton  line,  engaged  in  the  business  of  common  carriers  betvv^een 
Buffalo  and  Albany.  On  receiving  the  flour,  the  agent  of  the  com- 
pany executed  and  delivered  to  the  plaintiff's  agent  duplicate  bills 
of  lading,  by  which  the  company  undertook  to  deliver  the  flour  to 
Witt,  the  agent  of  the  Western  railroad,  at  East  Alban3^  One  of 
the  bills  of  lading  was  sent  to  Witt,  and  the  other  to  the  plaintiff,  at 
Boston. 

On  the  arrival  of  the  flour  at  Albany,  November  5th,  1847,  T\Ion- 
teath  and  Company,  the  agents  there  of  the  Old  Clinton  line,  called 
on  Witt,  and  informed  him  that  the  six  hundred  barrels  of  flour  had 
arrived,  and  asked  him  if  he  would  take  it  off  the  boat  that  day. 
Witt  said  he  would  not,  without  mentioning  any  time  when  he  would 
receive  the  flour;  but  only  that  the  boat  must  take  its  turn.  Boats 
an'iving  at  East  Albany,  consigned  to  Witt,  or  to  the  Western  rail- 
road, were  discharged  in  their  turns;  and  in  the  months  of  October 
and  November,  1847,  there  was  a  detention  at  East  Albany,  in 
unlading,  of  from  one  to  three  days. 

The  agents  of  the  Old  Clinton  line  at  Albany  thereupon  shipped 
the  floiir  to  the  city  of  New  York,  by  a  company  known  as  the 
Albany  and  Canal  line,  engaged  as  common  carriers  in  the  transpor- 
tation of  merchandise  between  the  city  of  New  York  and  Albany, 
and  received  from  the  agents  of  the  company  S433.08,  as  and  for  the 
freight  of  the  flour  from  Black  Rock  to  Albany,  and  requested  the 
company  to  ship  the  flour  from  New  York  to  Boston,  for  the  plaintiff. 

On  the  arrival  of  the  flour  at  New  York,  Hoyt,  the  agent  of  the 
Albany  and  Canal  line  there,  shipped  the  same  for  Boston  on  board 
the  schooner  Lady  Suffolk,  of  which  the  defendant  was  master,  con- 
signed to  Horace  Scudder  and  Company,  agents  of  the  Albany  and 
Canal  line  at  Boston;  and  Hoyt  at  the  same  time  remitted  to  Scud- 
der and  Company  a  bill  of  exchange,  drawn  by  him,  as  agent,  upon 
the  plaintiff,  payable  to  Scudder  p=:id  Company,  for  $494.33,  which 
included  the  freight  from  Black  Rock  to  Albany,  and  from  Albany 
to  New  York,  with  instructions  to  Scudder  and  Company  to  deliver 
the  flour  to  the  plaintiff,  on  his  pacing  or  agreeing  to  pay  the  amount 


274  ROBINSON    V.    BAKER.  [CHAP.  I. 

of  the  said  bill  of  exchange,  and,  in  addition  thereto,  the  freight  upon 
the  floiu*  from  New  York  to  Boston, 

On  the  arrival  of  the  defendant's  vessel  at  Boston  with  the  flour, 
November  23d,  1847,  the  plaintiff  demanded  the  same,  and  the 
defendant  refused  to  deliver  it,  on  the  ground  that  he  had  a  lien 
thereon  for  the  freight.  The  plaintiff  refused  to  pay  the  freight,  and 
commenced  this  action  of  replevin  to  recover  the  flour. 

Fletcher,  J.  As  the  ruling  of  the  judge,  that  the  defendant,  as  a 
carrier,  had  a  lien  for  his  freight,  was  placed  upon  grounds  wholly 
independent  of  any  rightful  authority  in  the  agents  of  the  Old  Clin- 
ton line  and  the  Albany  and  Canal  line,  to  divert  the  goods  from  the 
course  in  which  the  plaintiff  had  directed  them  to  be  sent,  and  to 
forward  them  by  the  defendant's  vessel,  and  wholly  independent  of 
the  plaintifi^s  consent,  express  or  implied,  the  simple  question  raised 
in  the  case  is,  whether  if  a  common  carrier  honestly  and  fairly  on  his 
part,  without  any  knowledge  or  suspicion  of  any  wrong,  receives 
50ods  from  a  wrongdoer,  without  the  consent  of  the  owner,  express 
or  implied,  he  may  detain  them  against  the  true  owner,  until  his 
freight  or  hire  for  carriage  is  paid ;  or  to  state  the  question  in  other 
words,  whether  if  goods  are  stolen  and  delivered  to  a  common  carrier, 
who  receives  them  honestly  and  fairly  in  entire  ignorance  of  the  theft, 
he  can  detain  them  against  the  true  owner,  until  the  carriage  is  paid. 

It  is  certainly  rem.arkable,  that  there  is  so  little  to  be  found  in  the 
books  of  the  law,  upon  a  question  which  would  seem  likely  to  be 
constantly  occurring  in  the  ancient  and  extensive  business  of  the 
carrier.  In  the  case  of  York  v.  Grenaugh,  2  Ld.  Ray.  866,  the  decision 
was,  that  if  a  horse  is  put  at  the  stable  of  an  inn  b}'  a  guest,  the  inn- 
keeper has  a  lien  on  the  animal  for  his  keep,  whether  the  animal  is  the 
property  of  the  guest  or  of  some  third  party  from  whom  it  has  been 
fraudulently  taken  or  stolen.  In  that  case.  Lord  Chief  Justice  Holt 
cited  the  case  of  an  Exeter  conamon  carrier,  where  one  stole  goods 
and  delivered  them  to  the  Exeter  carrier,  to  be  carried  to  Exeter;  the 
right  o^vTier,  finding  the  goods  in  possession  of  the  carrier,  demanded 
them  of  him;  upon  which  the  carrier  refused  to  deliver  them  unless  he 
was  first  paid  for  the  carriage.  The  owmer  brought  trover,  and  it  was 
held,  that  the  carrier  might  justify  detaining  the  goods  against  the 
right  owner  for  the  carriage ;  for  when  they  were  brought  to  him,  he 
was  obliged  to  receive  them,  and  carry  them,  and  therefore  since  the 
law  compelled  him  to  carry  them,  it  will  give  him  a  remedy  for  the 
premium  due  for  the  carriage.  Powell,  J.,  denied  the  authority  of 
the  case  of  the  Exeter  carrier,  but  concurred  in  the  decision  as  to  the 
innkeeper.  There  is  no  other  report  of  the  case  of  the  Exeter  carrier 
to  be  found.  Upon  the  authority  of  this  statement  of  the  case  of  the 
Exeter  carrier,  the  law  is  laid  down  in  some  of  the  elementary  trea- 
tises to  be,  that  a  carrier,  who  receives  goods  from  a  wrongdoer  or  thief, 
may  detain  them  against  the  true  owner  until  the  carriage  is  paid. 


CHAP.  I.]  ROBINSON    V.    BAKER.  275 

In  the  case  of  King  v.  Richards,  6  Whart,  418,  the  court,  in  giving 
an  opinion  upon  another  and  entirely  different  and  distinct  point, 
incidentally  recognized  the  doctrine  of  the  case  of  the  Exeter  carrier. 
But  until  within  six  or  seven  years  there  was  no  direct  adjudication 
upon  this  question  except  that  referred  to  in  York  v.  Grenaugh  of 
the  Exeter  carrier.  In  1843,  there  was  a  direct  adjudication,  upon 
the  question  now  under  consideration,  in  the  supreme  court  of  Mich- 
igan, in  the  case  of  Fitch  v.  Newberry,  1  Doug.  1.  The  circumstances 
of  that  case  were  very  similar  to  those  in  the  present  case.  There  the 
goods  were  diverted  from  the  course  authorized  b}'  the  owner,  and 
came  to  the  hands  of  the  carrier  without  the  consent  of  the  owner, 
express  or  implied;  the  carrier  however  was  wholly  ignorant  of  that, 
and  supposed  they  were  rightfully  delivered  to  him;  and  he  claimed 
the  right  to  detain  them  until  paid  for  the  carriage.  The  owner 
refused  to  pay  the  freight,  and  brought  an  action  of  replevin  for  the 
goods.  The  decision  was  against  the  carrier.  The  general  principle 
settled  was,  that  if  a  common  carrier  obtain  possession  of  goods 
wrongfully  or  without  the  consent  of  the  o's\aier,  express  or  implied, 
and  on  demand  refuse  to  deliver  them  to  the  owner,  such  owner  may 
bring  replevin  for  the  goods  or  trover  for  their  value.  The  case 
appears  to  have  been  very  fully  considered  and  the  decision  is  sup- 
ported by  strong  reasoning  and  a  very  elaborate  examination  of 
authorities.  A  very  obvious  distinction  was  supposed  to  exist  be- 
tween the  cases  of  carriers  and  innkeepers,  though  the  distinction 
did  not  affect  the  determination  of  the  case. 

This  decision  is  supported  by  the  case  of  Buskirk  v.  Purin,  2  Hall, 
561.  There  property  was  sold  on  a  condition,  which  the  buyer  failed 
to  comply  with,  and  shipped  the  goods  on  board  the  defendant's 
vessel.  On  the  defendant's  refusal  to  deliver  the  goods  to  the  owTier, 
he  brought  trover  and  was  allowed  to  recover  the  value,  although  the 
defendants  insisted  on  their  right  of  lien  for  the  freight. 

Thus  the  case  stands  upon  direct  and  express  authorities.  How 
does  it  stand  upon  general  principles?  In  the  case  of  Saltus  v. 
Everett,  20  Wend.  267,  275,  it  is  said:  ''The  universal  and  fundamen- 
tal principle  of  our  law  of  personal  property  is,  that  no  man  can  be 
divested  of  his  property  without  his  consent,  and  consequently  that 
even  the  honest  purchaser  under  a  defective  title  cannot  hold  against 
the  true  proprietor."  There  is  no  case  to  be  found,  or  any  reason  or 
analogy  anywhere  suggested,  in  the  books,  v/liich  would  go  to  show 
that  the  real  owner  was  concluded  by  a  bill  of  lading  not  given  by 
himself  but  by  some  third  person,  erroneously  or  fraudulently.  If  the 
owner  loses  his  property,  or  is  robbed  of  it,  or  it  is  sold  or  pledged 
without  his  consent,  by  one  who  has  only  a  temporary  right  to  its  use 
by  hiring  or  otherwise,  or  a  qualified  possession  of  it  for  a  specific 
purpose,  as  for  transportation,  or  for  work  to  be  done  upon  it,  the 
owner  can  follow  and  reclaim  it  iu  the  possession  of  any  person, 
however  innocent. 


276  ROBINSON    V.    BAKER.  [CHAP.  I. 

Upon  this  settled  and  universal  principle,  that  no  man's  property 
can  be  taken  from  him  without  his  consent,  express  or  implied,  the 
books  are  full  of  cases,  many  of  them  hard  and  distressing  cases,  where 
honest  and  innocent  persons  have  purchased  goods  of  others  appar- 
ently the  owners,  and  often  with  strong  evidence  of  ownership,  but 
who  yet  were  not  the  owners,  and  the  purchasers  have  been  obliged 
to  surrender  the  goods  to  the  true  owners,  though  wholly  without  rem- 
edy for  the  money  paid.  There  are  other  hard  and  distressing  cases  of 
advances  made  honestly  and  fairly  by  auctioneers  and  commission 
merchants,  upon  a  pledge  of  goods  by  persons  apparently  ha^dng 
the  right  to  pledge,  but  who  in  fact  had  not  any  such  right,  and  the 
pledgees  have  been  subjected  to  the  loss  of  them  by  the  claim  of  the 
rightful  o^vner.  These  are  hazards  to  which  persons  in  business  are 
continually  exposed  by  the  operation  of  this  universal  principle,  that 
a  man's  propertj^  cannot  be  taken  from  him  without  his  consent. 
Why  should  the  carrier  be  exempt  from  the  operation  of  this  univer- 
sal principle?  Why  should  not  the  principle  of  caveat  emptor  apply  to 
him?  The  reason,  and  the  only  reason,  given  is,  that  he  is  obliged  to 
receive  goods  to  carrj',  and  should  therefore  have  a  right  to  detain 
the  goods  for  his  pay.  But  he  is  not  bound  to  receive  goods  from  a 
wrongdoer.  He  is  bound  only  to  receive  goods  from  one  who  may 
rightfully  deliver  them  to  him,  and  he  can  look  to  the  title,  as  vrell  as 
persons  in  other  pursuits  and  situations  in  life.  Nor  is  a  carrier  bound 
to  receive  goods,  unless  the  freight  or  pay  for  the  carriage  is  first  paid 
to  him ;  and  he  may  in  all  cases  secure  the  pajTnent  of  the  carriage  in 
advance.  In  the  case  of  King  v.  Richards,  6  Whart.  418,  it  was  de- 
cided that  a  carrier  may  defend  himself  from  a  claim  for  goods  by  the 
person  who  delivered  them  to  him,  on  the  ground  that  the  bailor  was 
not  the  true  o'WTier,  and  therefore  not  entitled  to  the  goods. 

The  common  carrier  is  responsible  for  the  wrong  delivery  of  goods, 
though  innocently  done,  upon  a  forged  order.  Why  should  not  his 
obligation  to  receive  goods  exempt  him  from  the  necessity  of  deter- 
mining the  right  of  the  person  to  whom  he  delivers  the  goods,  as  well 
as  from  the  necessity  of  determining  the  right  of  the  person  from 
whom  he  receives  goods?  Upon  the  whole,  the  court  are  satisfied, 
that  upon  the  adjudged  cases,  as  well  as  on  general  principles,  the 
ruling  in  this  case  cannot  be  sustained,  and  that  if  a  carrier  receives 
goods,  though  innocently,  from  a  wrongdoer,  without  the  consent  of 
the  owner,  express  or  im.plied,  he  cannot  detain  them  against  the 
true  owner,  until  the  freight  or  carriage  is  paid. 

Note.  —  In  Fitch  v.  Newberry,  1  Doug.  (Mich.)  1,  the  court 
said  (pp.  8,  10,  11) :  "If,  as  contended  by  the  defendants,  a  carrier  is 
bound  to  receive  and  carry  all  goods  offered  for  transportation,  with- 
out the  right  of  enquiring  into  the  title  or  authority  of  the  person 
offering  them,  then  clearly  he  should  be  entitled  to  a  lien,  even 


I 


CHAP.  I.]  ROBINSON   V.    BAKER.  277 

against  the  owner,  upon  the  goods,  until  he  is  paid  for  the  labor  he 
may  bestow  in  their  carriage.  Let  us  now  enquire  whether  such  is  the 
law.  The  doctrine  is  certainly  opposed  to  all  the  analogies  of  the  law, 
and  it  seems  to  me  to  every  principle  of  common  justice.  .  .  .  All  the 
other  cases,  in  which'  the  general  proposition  is  laid  down  that  com- 
mon carriers  are  bound  to  receive  goods  offered  for  carriage,  are  e\'i- 
dentl}'  based  upon  the  supposition  that  the  goods  are  there  offered 
by  their  o-oners  or  their  authorised  agents;  and  that,  if  in  any  way 
they  acquire  possession  of  property''  without  consent  of  the  o^^^^er, 
exjDress  or  implied,  they,  like  all  other  persons,  may  be  compelled  to 
restore  it  to  such  o^vaier,  or  pay  him  for  its  value.  And  that  the  doc- 
trine of  caveat  emptor  applies,  ^vdth  the  same  force,  to  that  class  of 
persons  as  to  others,  is  manifest,  I  think,  from  an  examination  of 
authorities.  The  obligation  of  a  common  carrier  to  receive  and  carry 
all  goods  offered,  is  qualified  by  several  conditions,  which  he  has  a 
right  to  insist  upon  before  receiving  them.  1.  That  the  person  offer- 
ing the  goods  has  authority  to  do  so.  2.  That  a  just  compensation, 
or  the  usual  price,  be  tendered  for  the  carriage.  And  3.  That  al- 
though the  owner,  or  his  agent,  offer  goods  for  carriage  and  tender 
payment  for  the  freight  in  advance,  still  he  is  not  bound  to  receive 
them,  unless  he  have  the  requisite  convenience  to  cany  them.  In  an 
action  brought  against  a  carrier  for  refusing  to  receive  and  carry 
goods,  would  it  not  constitute  a  valid  defence  that  the  plaintiff  had 
stolen  them,  although,  at  the  time  of  offering,  the  carrier  may  not  have 
knoTvm  they  had  been  stolen?  In  Story  on  Bail.  §  582,  it  is  laid  down 
that  a  carrier  is  excused  for  non-delivery  of  goods  to  the  consignee, 
v:hen  they  are  demanded,  or  taken  from  his  possession,  by  some 
person  having  a  superior  title  to  the  property.  And,  again,  where  the 
adverse  title  is  made  kno^vn  to  the  carrier,  if  he  is  forbidden  to 
deliver  the  goods  to  anj^  other  person,  he  acts  at  his  peril;  and  if  the 
adverse  title  is  well  founded  and  he  resists  it,  he  is  liable  to  an  action 
for  the  recovery  of  the  goods.  If,  then,  the  owner  could  reclaim  the 
goods  in  the  hands  of  the  carrier,  after  their  delivery  to  him,  and  that 
would  excuse  a  non-delivery  to  the  depositor,  it  is  clear  that  he 
would  be  justified  in  refusing  to  receive  them  from  one  having  a 
wrongful  possession,  although  at  the  time  of  such  refusal  he  might 
not  know  the  manner  in  which  they  had  been  obtained.  So,  a  carrier 
is  in  all  cases  entitled  to  demand  the  price  of  carriage  before  he 
receives  the  goods,  and,  if  not  paid,  he  may  refuse  to  take  charge  of 
them.  Story  on  Bail.  §  586;  5  Barn.  &  Aid.  353;  4  Id.  32;  3  Bos.  & 
Pull.  48;  and  Whit,  on  Liens,  92.  If,  then,  a  common  carrier  may 
demand  payment  for  carriage  in  advance,  and  if  he  may  reject  goods 
offered  by  a  wrongdoer,  or  by  one  having  no  authority  to  do  so,  is 
he  not  bound  to  take  care  that  the  person  from  whom  he  receives 
them  has  authority  to  place  them  in  his  custody  ?  " 

The  doctrine  that  a  common  carrier  does  not  have  a  lien  upon 


278  COOK    V.    KANE.  [CHAP.  I. 

chattels  delivered  to  him  without  the  authority  of  the  owner  is  sup- 
ported by  Hayes  v.  Campbell,  63  Cal.  143;  Savannah  Ry.  Co.  v. 
Talbot,  123  Ga.  378;  Jones  v.  Boston  &  Albany  R.R.Co.,  63  Me.  188; 
Stevens  v.  Boston  Railroad  Corporation,  8  Gray  (Mass.)  262;  Clark  v. 
Lowell  Railroad  Company,  9  Gray  (Mass.)  231;  Gilson  v.  Gwinn, 
107  Mass.  126;  Corinth  Engine  Works  v.  Mississippi  Railroad  Co7n- 
pany,  95  Miss.  817;  Bassett  v.  Spofford,  45  N.Y.  387  (see  also  Coil- 
man  V.  Collins,  2  Hall,  569) ;  Vaughan  v.  Providence  R.R.  Co.,  13  R.I. 
578,  579;  Owen  v.  Burlington  Ry.  Co.,  11  S.D.  153.  See,  contra,  King 
V.  Richards,  6  Whart.  (Pa.)  418,  423. 


COOK  V.   KANE. 

13  Oreg.  482.     18S6. 

Lord,  J.  This  suit  was  instituted  by  the  plaintiff,  as  an  innkeeper, 
to  enforce  a  lien  against  a  piano,  put  in  his  possession  by  the  defend- 
ant as  his  guest,  for  a  debt  due  for  lodging  and  entertainment.  By 
the  facts  stipulated,  itris  admitted  that  the  relation  of  innkeeper  and 
guest  existed  between  the  plaintiff  and  defendant  when  the  plaintiff, 
at  the  request  of  the  defendant,  paid  the  freight  charges  on  the 
piano,  and  took  it  into  his  custody;  that  the  piano  was  in  fact  the 
property  of  a  third  person,  who  had  consigned  it  to  the  defendant  to 
sell  on  commission,  but  that  the  plaintiff  did  not  know  it  was  the 
property  of  such  third  person,  but  received  it  in  his  character  as  an 
innkeeper  and  as  the  property  of  his  guest.  Upon  this  state  of  facts, 
we  are  to  inquire  whether  the  piano  is  chargeable  "s\dth  an  innkeeper's 
lien  for  board  and  lodging  furnished  his  guest. 

At  common  law,  the  liability  of  an  innkeeper  for  the  loss  of  the 
goods  of  his  guest  is  special  and  peculiar,  and  like  that  of  the  common 
carrier,  is  founded  on  grounds  of  public  policy.  It  must  not,  however, 
be  confounded  with  that  of  a  common  carrier;  the  liabilities,  though 
similar,  are  distinct.  Clark  v.  Burns,  118  Mass.  275;  Schouler  on 
Bailments,  259.  AYhatever  controversy  may  exist  in  the  judicial 
mind  as  to  the  true  measure  of  the  innkeeper's  responsibility,  it  can- 
not be  denied  that  his  liability  for  the  loss  of  the  goods  of  his  guest 
is  extraordinary  and  exceptional.  Schouler  on  Bailments,  261,  and 
notes;  Coggs  v.  Bernard,  1  Smith's  Lead.  Cas.,  Am.  Notes,  401. 
Compelled  to  afford  entertainment  to  whomsoever  may  apply  and 
behave  with  decency,  the  law,  as  an  indemnity  for  the  extraordinary' 
liabilities  which  it  imposes,  has  clothed  the  innkeeper  with  extraor- 
dinary privileges.  It  gives  him,  as  a  secm'itA'  for  unpaid  charges,  a 
lien  upon  the  property  of  his  guest,  and  upon  the  goods  put  by  the 
guest  into  his  possession.  Overton  on  Liens,  129.  Nor  is  the  lien  con- 
fined to  property  onl}'  owned  by  the  guest,  but  it  will  attach  to  the 


CHAP.  I.]  COOK   V.    KANE.  279 

property  of  third  persons  for  whom  the  guest  is  bailee,  provided  only 
he  received  the  property  on  the  faith  of  the  innkeeping  relation, 
Schouler  on  Baihnents,  292;  Calye's  Case,  1  Smith's  Lead.  Cas.  247; 
Manning  v.  Hollenbeck,  27  Wis.  202.  But  the  Hen  will  not  attach  if 
the  innkeeper  knew  the  property  taken  in  his  custody  was  not  owned 
by  his  guest,  nor  had  any  right  to  deposit  it  as  bailee  or  otherwise, 
except  perhaps  some  proper  charge  incurred  against  the  specific 
chattel. 

In  Broadwood  v.  Granara,  10  Exch.  417,  the  innkeeper  knew  tkat 
the  piano  sent  to  the  guest  did  not  belong  to  him,  and  did  not  receive 
it  as  part  of  the  guest's  goods;  and  it  was  on  that  ground  alone  he  was 
held  not  entitled  to  his  lien.  But  in  Threfall  v.  Borwick,  L.  R.  7  Q.  B. 
210,  where  the  innkeeper  had  received  the  piano  as  part  of  the  goods 
of  his  guest,  it  was  held  he  had  a  lien  upon  it.  Miller,  J.,  said: 
"When,  having  accommodation,  he  has  received  the  guest  Avith  his 
goods,  and  thereby  has  become  liable  for  their  safe  custody,  it  would 
be  hard  if  he  was  not  to  have  a  lien  upon  them.  And  under  such  cir- 
cumstances, the  lien  must  be  held  to  extend  to  goods  which  he  might 
possibly  have  refused  to  receive."  Lusk,  J.,  said:  "I  am  of  the  same 
opinion.  The  innkeeper's  lien  is  not  restricted  to  such  things  as  a 
traveling  guest  brings  A^ith  him  in  journeying;  the  contrary  has  been 
laid  doA\ai  long  ago.  It  extends  to  all  goods  the  guest  brings  with  him 
and  the  innkeeper  receives  as  his.  If  he  has  this  lien  as  against  the 
guest,  the  cases  have  established  beyond  all  doubt  that  he  has  the 
same  right  as  against  the  real  owner  of  the  article,  if  it  has  been 
brought  to  the  inn  by  the  guest  as  owner."  To  the  same  effect, 
QuAiN,  J.,  said:  "There  is  no  authority  for  the  proposition  that  the 
lien  of  the  innkeeper  only  extends  to  goods  which  a  traveler  may  be 
ordinarily  expected  to  bring  with  him.  .  .  .  The  liability,  as  shown  by 
the  old  cases,  extends  to  all  things  brought  to  the  inn  as  the  property 
of  the  guest  and  so  received,  even  a  chest  of  charters  or  obligations; 
and  why  not  a  pianoforte?  If,  therefore,  the  innkeeper  be  liable  for 
the  loss,  it  seems  to  follow  he  must  also  have  a  lien  upon  them.  And 
if  he  has  a  lien  upon  them  as  against  the  guest,  the  two  cases  cited 
(and  there  are  more)  show  that  if  the  thing  be  brought  by  the  guest 
as  owner,  and  the  landlord  takes  it  in  thinking  it  is  the  guest's  own, 
he  has  the  same  rights  against  the  stranger,  the  real  owner,  as  against 
the  guest."  Upon  appeal  from  the  decision  of  this  case,  in  Threfall  v. 
Borwick,  L.  R.  10  Q.  B.  210,  it  was  held,  affirming  the  decision,  that 
whether  the  defendant,  as  innkeeper,  was  bound  to  take  in  the 
piano  or  not,  having  done  so,  he  had  a  lien  upon  it.  Although  there 
are  certain  dicta  not  necessary  to  the  decision  in  Broadwood  v.  Gra- 
nara, 10  Exch.  417,  to  the  effect  that  the  innkeeper  was  not  bound 
to  receive  the  piano,  yet  the  real  ground  of  the  decision  was  based  on 
the  fact  that  the  innkeeper  knew  that  the  piano  sent  to  his  guest  was 
the  property  of  a  third  person,  and  did  not,  therefore,  receive  it  as 


280  COOK    V.    KANE.  [CHAP.  I. 

part  of  his  guest^s  goods,  so  the  right  to  subject  the  piano  to  his 
lien  was  denied ;  but  e  converso,  if  he  had  not  known  the  piano  was  the 
property  of  a  third  person,  and  had  received  it  as  the  property  of  his 
guest,  would  not  his  lien  have  attached?  It  is  not  material  whether 
the  innkeeper  is  bound  to  receive  such  property  or  not,  although  it  is 
said  the  liability  may  be  well  extended,  according  to  the  advanced 
usages  of  society ;  yet  if  he  does  receive  it  as  the  property  of  his  guest, 
and  thereby  becomes  liable  for  it,  he  must  be  entitled  to  his  lien. 
Threfall  v.  Borwick,  supra. 

Whenever,  by  virtue  of  the  relation  of  innkeeper  and  guest,  the 
law  imposes  this  extraordinary  responsibility  for  the  goods  of  the 
guest,  it  gives  the  innkeeper  a  corresponding  security  upon  the  goods 
put  by  the  guest  into  his  possession.  It  is  true  that  the  piano  was 
shipped  to  the  defendant  in  his  name,  but  he  brought  it  to  the  inn  as 
his  property,  or  at  least  it  was  brought  there  at  his  request  and  upon 
his  order,  and  put  in  the  custody  and  possession  of  the  plaintiff  as 
the  property  of  his  guest.  It  is  admitted  that  the  plaintiff  received  it 
as  an  innkeeper,  and  safely  kept  it  as  the  property  of  his  guest;  nor 
is  it  doubted  but  what  he  would  have  been  liable  for  its  loss;  and  in 
such  case,  it  is  difficult  to  perceive  upon  what  principle  of  law  or  jus- 
tice he  can  be  denied  his  lien.  The  judgment  must  be  affirmed. 

Waldo,  C.J.,  concm'ring. 

Thayer,  J.  (dissenting)  .  .  .  Upon  the  main  question  in  the  case, 
there  is  some  doubt  in  view  of  the  authorities  upon  the  subject. 
Though  upon  a  common-sense  view  there  would  not  seem  to  be  any. 
That  the  man  Kane  could  pledge  the  appellant's  piano  for  his  own 
hotel  bill,  or  in  any  way  subject  it  to  the  pajTnent  thereof,  would 
shock  all  sense  of  property  right.  The  respondent's  counsel,  however, 
have  cited  numerous  cases  where  such  a  lien  has  attached  to  the 
propert}^  of  a  third  person,  and  I  have  no  doubt  but  that  such  lien 
will  in  many  cases  attach  to  the  property  taken  by  the  guest  to  the 
inn  at  which  he  obtains  accommodations,  though  he  be  not  the 
owner  of  it.  But  in  all  such  cases,  it  seems  to  me  the  property  must 
derive  some  special  benefit,  or  else  the  owner  must  have  intrusted 
it  to  a  party  under  circumstances  from  which  he  could  reason- 
ably have  concluded  that  the  party  would  become  the  guest  of  an 
inn,  and  take  the  property  with  him  there  as  his  own ;  and  I  do  not 
think  the  rules  should  extend  further  than  this.  In  the  case  under 
consideration,  it  does  not  appear  that  the  appellant  ever  knew  that 
Kane  was  stopping  at  a  hotel.  He  sent  the  piano  to  him  at  Baker 
City,  to  sell  upon  commission.  It  does  not  appear  that  the  re- 
spondent furnished  the  entertainment  upon  the  credit  of  the  piano, 
or  upon  the  supposition  that  it  belonged  to  Kane.  The  latter  might, 
and  so  far  as  I  can  see  would,  have  continued  a  guest  at  the  hotel  the 
same  whether  the  piano  had  been  sent  or  not.  It  is  not  a  case,  as  I 
view  it,  where  the  owner  of  the  property  has  clothed  another  wth 


i 


CHAP.  I.]  COOK    V.    KANE.  281 

the  indicia  of  ownership,  and  a  third  person  been  deceived  thereby 
into  purchasing  it,  or  giving  credit  upon  the  faith  of  such  indication. 
It  was  purely  a  business  transaction.  The  appellant  was  attempting 
to  make  sale  of  his  property,  and  sent  it  to  Kane  for  that  purpose. 
The  latter  had  no  authority  in  the  premises,  except  to  exercise  the 
special  power  conferred,  and  it  does  not  appear  but  that  the  respond- 
ent had  full  knowledge  of  the  facts,  as  the  appellant  alleged  he  did 
in  his  answer.  I  am  inclined  to  believe  that  the  burden  of  proof  was 
upon  the  respondent  to  establish  that  he  supposed  the  piano  to 
belong  to  Kane,  and  that  he  entertained  him  upon  the  faith  that  such 
was  the  fact,  before  he  could  claim  a  lien  upon  it  for  the  hotel  bill. 
The  property  of  one  man  should  not  be  taken  for  the  debt  of  another 
against  the  former's  consent,  unless  he  has  done  some  act  or  neg- 
lected some  duty  creating  the  liability.  A  party  cannot  be  deprived 
of  his  ownership  to  property  to  satisfy  the  claim  of  another,  unless  he 
has  in  some  form  obligated  himself  to  submit  to  it.  He  must  have 
agreed  to  it  in  terms,  or  have  done  some  act  directly  or  remotely 
authorizing  it.  I  do  not  think  that  the  pleadings  and  agreed  facts  in 
this  case  establish  that  the  respondent  had  any  lien  upon  the  piano 
for  the  hotel  bill  against  Kane,  or  for  anything  beyond  the  sum 
advanced  by  the  respondent  for  the  freight  and  transportation  of  it, 
unless  it  be  for  its  storage;  but  the  instrument  has  doubtless  been 
used  sufficiently  to  offset  any  sum  for  storage,  and  the  appellant  duly 
tendered  the  amount  advanced  as  freight  and  transportation. 
I  think  the  decree  should  be  reversed  as  to  the  appellant. 

Note,  —  The  English  doctrine,  protecting  the  innkeeper  when  the 
goods  are  delivered  to  him  without  the  authority  of  the  owner, 
was  followed  in  Black  v,  Brennan,  5  Dana  (Ky.)  310,  decided  in 
1837. 

In  1843  it  was  decided  in  Fitch  v.  Newberry,  1  Doug.  (Mich.)  1, 
that  a  common  carrier  did  not  have  a  lien  upon  chattels  delivered  to 
him  without  the  authority  of  the  owner.  In  this  case  the  court  said 
(p.  9) :  "There  is  an  obvious  ground  of  distinction  between  the  cases 
of  carrying  goods  by  a  common  carrier,  and  the  furnishing  keeping 
for  a  horse  by  an  innkeeper.  In  the  latter  case,  it  is  equally  for  the 
benefit  of  the  owner  to  have  his  horse  fed  by  the  innkeeper,  in  whose 
custody  he  is  placed,  whether  left  by  a  thief  or  by  himself  or  agent; 
in  either  case,  food  is  necessary  for  the  preservation  of  his  horse,  and 
the  innkeeper  confers  a  benefit  upon  the  owner  by  feeding  him.  But 
can  it  be  said  that  a  carrier  confers  a  benefit  on  the  owner  of  goods, 
by  carrying  them  to  a  place,  where,  perhaps,  he  never  designed  and 
does  not  wish  them  to  go?  Or,  as  in  this  case,  is  the  owner  of  goods 
benefited  by  having  them  taken  and  transported  by  one  transporta- 
tion line,  at  their  OAvn  price,  when  he  had  already  hired  and  paid 
another  to  carry  them  at  a  less  price?  This  distinction  does  not,  how- 


282  COOK    V.    KANE.  [CHAP.  I. 

ever,  at  all  affect  the  determination  of  the  case  before  us;  we  place  it 
entirely  upon  other  grounds." 

Since  1843  there  have  been  some  decisions  in  support  of  the  Eng- 
lish doctrine  in  addition  to  the  principal  case.  Jones  v.  Morrill,  42 
Barb.  (N.Y.)  623;  Singer  Mfg.  Co.  v.  Flennigan,  7  Penn.  Co.  Ct. 
Rep.  45.  And  there  have  been  numerous  statements  by  the  courts 
that  the  English  doctrine  is  law.  Singer  Mfg.  Co.  v.  Miller,  52  Minn. 
516;  Waters  v.  Gerard,  189  N.Y.  302  (earlier  New  York  cases  in  which 
such  statements  were  also  made  are  collected  in  the  opinion) ;  Cor- 
ington  v.  Newherger,  99  N.C.  523;  McGhee  v.  Edwards,  87  Tenn.  506. 
See,  also,  Alvord  v.  Davenport,  43  Vt-  30.  And  the  standard  text- 
writers  state  that  the  English  doctrine  is  law  in  this  country. 

The  student  should  deliberate  as  to  whether  there  should  be  one 
rule  for  the  common  carrier,  and  another  rule  for  the  innkeeper. 

No  one  would  question  the  soundness  of  the  decisions  holding  that, 
where  the  owner  entrusts  goods  to  an  agent,  contemplating  that  the 
goods  will  be  received  by  innkeepers  as  part  of  his  luggage,  and  they 
are  so  received,  the  innkeeper  has  a  lien  upon  the  goods  for  the 
charges  against  the  agent.  Thus,  of  the  samples  with  which  a  travel- 
ling salesman  is  entrusted.  See  Polk  v.  Melenhacker,  136  Mich.  611; 
Smith  V.  Keyes,  2  T.  &  C.  (N.Y.)  650;  Manning  v.  Hollenheck,  27 
Wis.  202. 

For  the  rule  under  the  Georgia  Code  see  Domestic  Sewing  Machine 
Co.  v.  Walters,  50  Ga.  573. 


^ 


CHAP.  I.]  LUCKETTS    V.    TOWKSEND,  283 

D.  Pledges. 


COGGS  V.  BERNARD. 

2  Ld.  Raym.  909.      1703. 

Holt,  Chief  Justice.  .  .  .  When  goods  or  chattels  are  delivered  to 
another  as  a  pawn,  to  be  a  security  to  him  for  money  borrowed  of 
him  by  the  bailor,  .  .  .  this  is  called  in  Latin  vadium,  and  in  English 
a  pawn  or  pledge. 


LUCKETTS  V.   TOWNSEND. 

3  Tex.  119.      1S48. 

Mr.  Justice  Wheeler.  .  .  .  What  are  the  respective  rights  of  the 
parties  under  this  contract?  And  upon  this  point,  it  is  insisted  for 
the  defendants  in  error,  that  upon  the  failure  of  the  plaintiffs  to  pay 
the  debt  at  the  time  stipulated,  the  right  of  property',  by  the  law 
of  the  contract  considered  either  as  a  pledge  or  a  mortgage,  became 
absolute  in  Townsend:  at  all  events,  that  the  stipulation  in  the 
contract  to  that  effect,  is  valid  and  must  be  adhered  to. 

It  is  clear,  saj^s  Story  (Bailments,  s.  346),  by  the  common  law,  that 
in  cases  of  pledge,  if  a  stipulated  time  is  fixed  for  the  pajiiient  of  the 
debt,  and  the  debt  is  not  paid  at  the  time,  the  absolute  property  does 
not  pass  to  the  pawnee;  and  this  doctrine  is  as  old  as  the  time  of 
Glanville.  2  Glanville,  Lib.  10,  ch.  6;  2  Caines,  Cas.  in  Error,  200; 
Yelv.  178. 

Kent  asserts  the  same  as  having  been  the  doctrine  of  the  common 
law;  and  he  adds  —  "the  pawnee  was  obliged  to  have  recourse  to 
process  of  law  to  sell  the  pledge ;  and  until  that  was  done,  the  pa"\\Tior 
was  entitled  to  redeem."  2  Kent,  Com.,  581;  2  Stoiy's  Eq.,  s.  1032. 

But  the  English  law  now  is,  that  when  the  debt  is  due,  the  pawnee 
has  the  election  of  two  remedies.  He  may  have  a  judicial  sale  under 
a  decree  of  foreclosure;  or  he  may  sell  without  judicial  process,  upon 
giving  reasonable  notice  to  the  debtor.  For  the  pa-miee  is  not  now 
bound  to  wait  for  a  sale  under  a  decree  of  foreclosure,  as  he  is  in  the 
case  of  a  mortgage  of  land.  2  Kent's  Comm.,  581.  But  without  any 
bill  to  redeem,  the  creditor  on  a  pledge  or  mortgage  of  chattels  may 
sell  at  auction,  on  giving  reasonable  opportunity  to  the  debtor  to 
redeem,  and  apprising  him  of  the  time  and  place  of  sale.  4  Kent's 
Comm.,  1.39;  2  Story,  Eq.,  s.  1031. 

The  notice  to  the  party  in  such  cases  is,  however,  indispensable. 


284  NOTE.  [chap.  I. 

1  Brown.  Pa.,  176;  2  Caines,  Cas.  Err.,  200;  2  Story,  Eq.,  1033,  n.  4, 
3d  edit.  And  the  creditor  (says  Kent)  will  be  held  at  his  peril,  to  deal 
fairly  and  justly  with  the  pledge,  both  as  to  the  time  of  the  notice 
and  the  manner  of  the  sale.  2  lint's  Comm.,  583. 


NOTE. 

If  the  owner  of  chattels  bails  them,  with  intent  that  the  bailee  shall 
perform  some  service  for  the  bailor  respecting  such  chattels,  and  the 
bailee  has  the  right  to  hold  such  chattels  until  sums  due  to  him  from 
the  bailor  are  paid,  the  bailee  is  properly  said  to  have  a  lien  upon  such 
chattels. 

If  the  owner  of  chattels  bails  them,  with  intent  that  the  bailee  shall 
hold  them  until  sums  due  to  him  from  the  bailor  are  paid  (or  other 
stipulated  acts  are  performed  by  the  bailor),  the  primary  purpose 
of  the  bailment  being  to  give  secuiity,  the  bailee  is  properly  said 
to  have  a  pledge  of  such  chattels. 


CHAP.  II.]  SEEBAUM   V.    HANDY.  285 


CHAPTER  II. 
LOSS  BY  SURRENDER  OF  POSSESSION. 


SEEBAUM  V.   HANDY. 

46  Ohio,  560.     1889. 

The  plaintiff  below  was  the  keeper  of  a  feed-stable  in  the  city  of 
Cincinnati.  The  owner  of  a  horse,  who  lived  out  of  the  city,  was  in 
the  habit  of  leaving  it  with  the  plaintiff,  when  in  the  city,  to  be  fed 
and  cared  for  as  long  as  suited  his  convenience;  when  called  for,  the 
horse  would  be  delivered  to  the  o^^^■ler,  and  not  returned,  except  at 
such  intervals  as  suited  the  owner's  convenience  when  again  in  the 
city.  The  plaintiff  kept  an  account  in  which  the  owner  was  charged 
with  the  feed  and  care  of  the  horse  from  time  to  time,  as  it  was  left 
with  him.  On  or  about  the  12th  of  November,  1884,  the  horse  was 
called  for  and  delivered  to  the  owner,  as  usual ;  the  charges  for  feed 
and  care  then  amounted  to  over  a  hundred  dollars.  Shortly  after- 
ward the  owner  was  killed  by  being  thrown  from  his  buggy.  And 
some  time  after  that,  the  horse  was  driven  to  the  city  by  a  brother 
of  the  deceased  and  left  at  another  feed  stable,  from  Avhich  it  was 
replevied  by  the  plaintiff  in  an  action  against  certain  children  of 
the  deceased,  who  claimed  to  be  the  owners  of  the  horse. 

MiNSHALL,  C.J.  Whether  the  instructions  of  the  court  to  the  jury 
stated  the  law  applicable  to  the  case  made  by  the  tendency  of  the 
proof,  depends  upon  the  nature  and  character  of  the  lien  given  by 
sections  3212  and  .3213,  Rev.  Stats.,  to  a  person  who  furnishes  food 
and  care  for  any  "horse"  by  virtue  of  an  agreement  with  the  owner, 
to  secure  the  payment  of  the  same. 

These  sections  are  as  follows:  — ■ 

"  Sec.  3212.  A  person  who  feeds  or  furnishes  food  and  care  for  any 
horse,  mare,  foal,  filly,  gelding,  mule,  or  ass,  by  virtue  of  any  con- 
tract or  agreement  with  the  owner  thereof,  shall  have  a  lien  therefor, 
to  secure  the  payment  of  the  same,  upon  such  animal." 

"Sec.  3213.  A  person  feeding  or  furnishing  food  and  care  for  any 
horse,  mare,  foal,  filly,  gelding,  mule,  or  ass,  shall  retain  such  animal 
for  the  period  of  ten  days,  at  the  expiration  of  which  time,  if  the 
owner  does  not  satisfy  such  lien,  he  may  sell  such  animal  at  public 
auction,  after  giving  the  owner  ten  days'  notice  in  a  newspaper  of 
general  circulation  in  the  county  where  the  services  were  rendered; 


283  SEEBAUM    V.    HANDY,  [CHAP.  U. 

and  after  satisfying  the  lien  and  costs  that  may  accrue,  any  residue 
remaining  shall  be  paid  to  the  owner." 

It  seems  to  us  very  clear  upon  a  view  of  these  sections,  that  the  in- 
tention of  the  legislature  was,  in  enacting  them,  to  give  to  the  person 
furnishing  such  food  and  care  a  lien  upon  the  annual  as  a  security  for 
the  food  furnished  and  care  bestowed,  with  the  incidents  of  a  lien  at 
common  law  in  analogous  cases.  The  first  section  gives  the  "lien," 
and  the  next  one  provides  the  mode  of  maintaining  and  enforcing  it : 
The  "person"  shall  "retain"  the  animal  for  ten  days,  and  if,  at  the 
expiration  of  that  time,  the  owner  does  not  satisfy  the  lien,  he  may, 
on  giving  the  requisite  notice,  sell  it  at  public  auction. 

The  nature  and  incidents  of  a  common-law  Hen  of  this  kind  are 
well  settled:  It  is  a  right  to  retain  property  until  certain  claims 
against  it  are  satisfied;  and  possession  is  not  only  essential  to  its  cre- 
ation, but  also  to  its  continuance.  Where  the  party  voluntarily  parts 
with  the  possession  of  the  property  upon  which  the  lien  has  attached, 
he  is  divested  of  his  lien.  2  Kent,  Com.  638;  Smith's  Mercantile  Law, 
697;  Sweet  v.  Pym,  1  East,  4;  Ldckbarrow  v.  Mason,  6  East,  21 ;  Ham- 
mond  V.  Barclay,  2  East,  227;  Jordan  v.  James,  5  Ohio  R.  89,  98.  In 
McFarland  x.' Wheeler,  26  Wend.  473,  it  is  said,  that  "the  very 
definition  of  a  lien  as  the  right  to  retain,  indicates  that  it  must 
cease  when  the  possession  is  relinquished.  This  principle,  so  clearly 
founded  in  reason  and  so  congruous  to  public  utility  and  the  con- 
venience of  trade,  is  supported  by  the  uniform  testimony  of  the 
decisions." 

The  right  to  sell  the  animal  upon  notice  and  apply  the  proceeds 
to  satisfying  the  lien,  does  not  affect  its  classification  -with  similar 
common-law  liens;  it  only  gives  a  plain  and  simple  remedy  for 
enforcing  the  lien. 

The  evidence  tended  to  show,  and  the  charge  of  the  court  was 
applicable  to,  a  case  where  the  o\vner  of  a  horse  temporarily  leaves  it 
with  the  owner  of  a  feed-stable  to  be  fed  and  cared  for;  there  is  no 
definite  arrangement  as  to  time;  it  may  be  for  less  or  more  than  a 
day;  this  depends  upon  the  convenience  of  the  owTier  who  resides  out 
of  the  city;  when  he  wishes  to  return  home,  the  horse  is  delivered  to 
him,  and  the  feed  and  care  is  charged  to  him  in  an  account  by  the 
keeper.  There  is  no  express  agreement  at  any  time  that  the  horse  is 
to  be  returned.  Now  how,  under  these  circumstances,  it  can  be  in- 
ferred, as  the  -court  charged  the  jurj^,  that  there  is  an  implied  con- 
tract on  the  part  of  the  owner  to  return  the  horse,  we  are  unable  to 
see.  The  owner  is,  for  the  time,  simply  a  customer  of  this  particular 
feed-stable.  The  keeper  may  expect  that  when  the  owner  again 
comes  to  the  city  he  will  again  patronize  him  by  sending  his  horse  to 
his  stable.  But  when  this  may  be,  he  can  neither  rightfully  demand 
to  know,  or  expect  to  be  informed.  How  would  the  owner,  as  a  mat- 
ter of  law,  violate  any  agreement  for  which  damages  could  be  recov- 


CHAP.  II.]  SEBBAUIVI    V.    HANDY.  287 

ered,  if  he  should,  in  the  meantime,  conclude  to  change  his  patronage 
and  never  return  the  horse.  If  it  were  otherwise,  then  it  might  be 
inferred  that  every  customer  of  a  store  is  under  an  implied  contract 
to  continue  to  deal  with  it.  If  he  were  in  debt  for  goods  previously 
sold,  he  might  be  under  a  moral  obligation  not  to  withdraw  his  custom 
until  he  had  discharged  what  he  owed,  but  there  would  be  no  legal 
obligation  to  that  effect,  arising  from  the  circumstances. 

The  lien  provided  by  this  statute  does  not  arise  upon  contract. 
True,  the  feed  must  be  furnished  under  an  agreement  with  the  owmer, 
but  where  this  has  been  done  the  statute  creates  the  lien  in  favor  of 
the  party  furnishing  it,  irrespective  of  any  agreement  therefor  to  that 
effect.  The  lien  given  is  a  right  to  retain  the  property,  that  is  its 
possession,  as  a  security  for  the  debt,  and  if  this  right  is  not  insisted 
on  when  the  horse  is  called  for,  the  owner  can  not  be  said  to  violate 
any  agreement  in  not  afterward  retm-ning  it ;  for  he  has  no  notice  of 
an  intention  on  the  part  of  the  keeper  to  assert  a  lien,  when  the 
property  is  voluntarily  delivered  to  him;  and,  therefore,  any  sup- 
posed agreement  to  return  could  only  relate  to  a  thing  of  which  he 
has  no  notice,  and  which,  in  fact,  has  no  existence. 

Therefore,  in  a  case  like  the  one  to  which  the  court  applied  its 
charge,  the  person  furnishing  the  feed  and  bestowing  the  care  must, 
if  he  would  assert  a  lien  on  the  animal  therefor,  do  so  by  retaining  its 
possession  when  called  for  by  the  o"WTier,  unless  his  charges  are  paid. 
If  he  do  not,  and  voluntarily  deliver  the  animal  to  the  owner,  he 
must  be  held  to  have  waived  his  right  to  assert  a  lien  under  the 
statute,  and  to  be  satisfied  with  the  personal  liability  of  the  owner 
for  the  charges.  Such  is  the  rule  in  common-law  liens  based  on  pos- 
session, and  we  see  no  reason  why  the  rule  should  not  apply  here  as 
well  as  there.  It  is  more  in  harmony  mth  the  general  policy  of  our 
statutes  "which  always  strive  to  secure  public  registration  when  pos- 
session is  not  given  and  retained,  and  which  expressly  provide  for 
such  registration  when  they  in  terms  create  a  lien  not  depending  on 
possession."  Holmes,  J.,  in  Burton  v.  Frye,  139  Mass.  12G,  130.  See 
also  the  follo^ving  cases:  Perkins  v.  Boardman,  14  Gray,  481;  Papin- 
sau  V.  Wontworth,  136  Mass.  543;  Forth  v.  Simpson,  66  Eng.  Com. 
Law,  680. 

What  should  be  the  rule  in  cases  where  the  animal  is  placed  by  the 
owTier  with  a  person  to  be  fed  and  cared  for,  not  temporarily^ — the 
horse  being  ordinarily  kept  at  home  or  somewhere  else  by  the  owner 
—  but,  permanently  for  some  time  either  definite  or  indefinite,  pre- 
sents a  different  question.  In  such  case  where  the  owner  is  allowed 
to  use  it,  its  voluntary  delivery  to  him  for  such  purpose  might  be 
said  to  imply  a  contract  to  return  the  animal,  and  a  failure  to  do  so 
would  be  such  a  fraud  as  to  estop  the  o^vner  from  setting  up  that  the 
lien  had  been  lost  by  such  voluntary  delivery.  But  this  is  not  the 
case  before  us,  and  we  express  no  definite  opinion  upon  it  at  this  time. 


288  ALLEN    V.    SMITH.  [CHAP.  II. 

We  have  examined  the  cases  cited  by  counsel  for  the  plaintiff  in 
error,  but  fail  to  find  that  they  give  any  considerable  support  to  his 
view  of  the  case. 

The  case  of  Young  v.  Kimball,  23  Penn.  St.  195,  is  simply  to  the 
effect  that  where  the  o^^oier  forcibly  or  clandestinely  obtains  pos- 
session of  the  subject  of  the  lien,  the  lienor's  right  is  not  impaired  by 
such  deprivation  of  the  possession.  Munson  v.  Porter,  63  la.  453, 
rightly  holds  that  demanding  more  than  is  due,  will  not  entitle  the 
owner  to  replevin  the  property  wdthout  paying  what  is  due.  And 
Eckland  v.  Donahue,  9  Daly,  214,  holds  that  replevin  of  the  property 
cannot  be  had  by  bringing  it  before  the  defendant  had  time  to  make 
out  his  bill  and  give  notice  of  his  intention  to  perfect  a  lien,  as 
required  by  statute. 

The  cases  of  Caldwell  v.  Tutt,  10  Lea  (Tenn.)  258,  and  of  Smith  v. 
Harden,  60  N.H.  509,  would  tend  to  support  the  case  where  animals 
are,  for  the  time  being,  permanently  left  with  a  person  to  be  fed  and 
cared  for,  with  the  right  in  the  owner  to  use  them.  In  such  cases  it  is 
held  that  the  lien  is  not  thereby  affected  as  against  a  creditor  of  the 
owner.  The  possession  of  the  animal  by  the  owner  under  such  cir- 
cumstances is  not  regarded  as  terminating  the  bailment,  the  posses- 
sion being  constructively  that  of  the  bailee,  and  mider  an  implied 
contract  to  return  the  animal  as  soon  as  the  use  is  at  an  end.  This 
seems  somewhat  plausible,  but  whether  sound  or  not,  we  do  not,  for 
the  reasons  before  stated,  now  determine 

Judgment  affirmed. 


ALLEN  V.  SMITH. 

12  C.  B.  (N.S.)  638.     1862. 

The  cause  was  tried  before  Byles,  J.,  at  the  sittings  in  London 
after  last  Hilary  Term.  The  facts  which  appeared  in  evidence  were 
as  follows:  —  On  the  15th  of  March,  1861,  one  Thomas  Burrowes, 
who  was  a  stud-gi'oom  and  trainer,  and  who  had  been  long  kno\Mi  to 
the  defendant,  came  to  the  defendant's  inn,  the  Wheatsheaf,  at 
Westbury,  in  the  county  of  Wilts,  with  the  horse  Nimrod,  on  his  way 
to  the  meet  of  the  Wiltshire  hounds  at  that  place.  After  staying  there 
a  short  time  to  refresh  and  bait  his  horse,  he  departed,  but  retmiied 
that  evening,  and  slept  at  the  Wheatsheaf.  On  the  foUomng  morn- 
ing, a  groom  in  Burrowes's  employ  arrived  at  the  inn  with  the  other 
horse.  Magenta;  and  Burrowes  and  the  groom  remained  there  with 
the  two  horses,  with  the  exception  of  certain  intervals  of  absence 
when  they  went  with  the  horses  to  run  at  races  in  various  parts  of  the 
country,  down  to  the  11th  of  October.  Besides  these  occasional 
absences,  the  horses  were  taken  out  daily  for  exercise  on  the  downs. 


I 


CHAP.  II.]  VINAL    V.    SPOFFORD.  289 

Erle,  C.J.  It  is  clear  that  these  horses  were  brought  to  the  Wheat- 
sheaf  and  there  received  by  the  defendant  in  his  character  of  inn- 
keeper receiving  a  guest  wdth  his  horses  and  servant ;  and  that  Bur- 
rowes  and  his  man  came  within  the  description  of  "  transeuntes  "  in 
the  old  writ  which  has  been  referred  to.  They  came  to  the  inn  and 
were  entertained  there  as  "travellers":  and  the  contract  they  com- 
menced with  must  be  presumed  to  continue  until  a  new  contract  is 
shown  to  have  been  entered  into.  I  see  no  evidence  of  any  new  con- 
tract. It  is  urged  on  the  part  of  the  plaintiff,  that,  although  they  may 
at  first  have  been  received  as  ordinary  guests,  after  stajdng  there  a 
considerable  number  of  days  the  character  of  guest  was  changed  into 
that  of  lodger.  No  precedent  has  been  cited  to  warrant  that :  and  I 
must  confess  I  do  not  see  any  reason  for  it.  It  seems  to  me  that  the 
circumstance  of  the  horses  having  been  allowed  to  go  out  in  the  ordi- 
nary way  of  a  guest  riding  or  driving  out  and  intending  to  return, 
cannot  have  the  effect  of  defeating  the  innkeeper's  lien.  The  inten- 
tion to  return  was  strongly  indicated  by  Burrowes's  going  out  on 
each  occasion  without  as  it  would  appear  asking  for  his  bill. 

[The  defendant  was  held  to  have  a  lien  on  the  horses  for  all  his 
charges.] 

Note.  —  Cf.  Forth  v.  Simpson,  13  Q.  B.  680. 


VINAL  V.  SPOFFORD. 

139  Mass.  126.     1885, 

Replevin  of  one  horse,  one  grocery  wagon,  one  open  buggy,  one 
express  harness,  and  one  buggy  harness.  Writ  returnable  to  the 
Municipal  Court  of  the  city  of  Boston.  That  court  entered  judgment 
for  the  plaintiff  for  all  the  articles  reple\ded  except  the  horse,  wdth 
damages  and  costs;  and  also  entered  judgment  for  the  defendant  for 
a  return  of  the  horse,  and  for  damages  and  costs.  The  plaintiff 
appealed  to  the  Superior  Court  from  the  latter  judgment.  Trial  in 
that  court,  before  Brigham,  C.J.,  who  allowed  a  bill  of  exceptions, 
in  substance  as  follows: 

The  defendant  contended  that  he  had  a  right,  under  the  plaintiff's 
appeal,  to  try  the  question  of  the  title  to  the  wagon  and  the  harnesses; 
but  the  judge  ruled  that  he  had  no  such  right,  and  excluded  evidence 
offered  in  regard  to  such  title. 

As  to  the  horse,  there  was  evidence  tending  to  prove  the  following 
facts :  Howard  Vinal,  the  father  of  the  plaintiff,  during  the  two  years 
prior  to  January  4,  1883,  had  owned  a  stock  of  groceries,  and  also  the 
horse  described  in  the  plaintiff's  declaration,  which  he  had  used  in 
connection  with  his  business  of  a  grocer,  at  a  shop  in  Boston,  and 


290  VINAL    V.    SPOFFORD.  [CHAP,  H. 

during  seven  months  of  this  period  had  hired  the  keeping  of  said 
horse  at  the  Hvery  stable  of  the  defendant.  On  January  4,  1883, 
Howard  Vinal,  being  embarrassed  in  his  business,  executed  and 
dehvered  a  bill  of  sale  of  all  the  stock,  furniture,  and  fixtures  owned 
by  him  in  said  shop,  together  with  said  horse,  to  the  plaintiff,  and  on 
the  same  day  delivered  the  horse  to  the  plaintiff,  in  consideration  of 
the  plaintiff's  promissory'  note,  payable  on  demand,  for  a  certain 
sum,  which  was  received  bj^  Howard  Vinal,  on  payment  of  said  note, 
and  applied  by  him  to  carry  into  effect  a  composition  with  most  of 
his  creditors. 

At  the  time  of  this  composition,  Howard  Vinal  requested  the  de- 
fendant to  become  a  party  thereto,  but  the  defendant,  whose  claim 
against  Howard  Vinal  for  keeping  the  horse  was  from  S160  to  S190, 
refused  so  to  do  unless  the  full  amount  of  his  claim  was  paid ;  and  he 
did  not  become  a  party  to  said  composition  dming  the  keeping  of  the 
horse  at  the  defendant's  livery  stable,  before  and  after  the  transac- 
tion of  sale  between  Howard  Vinal  and  the  plaintiff.  After  January 
4, 1883,  the  shop  was  conducted  with  the  same  sign  upon  it  as  before; 
the  horse  was  used  in  the  business  of  said  shop  as  before,  and  Howard 
Vinal  conducted,  for  a  salary  of  S12  per  week,  the  business  of  the 
shop,  with  the  same  clerks  as  before,  while  the  plaintiff  carried  on  the 
business  of  his  shoe  shop  on  another  street. 

The  daily  custom  in  the  matter  of  the  use  and  keeping  of  said 
horse  was  this:  it  was  taken  bj^  Howard  Vinal,  or  by  some  person 
acting  under  his  direction,  from  the  defendant's  livery  stable  early  in 
the  morning,  and  used  at  the  shop  in  its  business  until  noon,  then 
was  taken  to  the  defendant's  stable  to  be  baited;  afterv\'ards  it  was 
taken  to  the  shop,  and  there  used  until  evening,  when  it  was  returned 
to  the  defendant's  livery  stable,  and  was  there  kept  until  the  follow- 
ing morning.  While  the  horse  was  at  the  shop,  according  to  the  daily 
custom,  on  Januarj'  4,  1883,  he  was  delivered  to  the  plaintiff,  under 
the  transaction  of  sale;  and,  without  notice  thereof  to  the  defendant 
of  said  transaction,  at  the  close  of  that  day  was  returned  to  the  de- 
fendant's livery  stable,  and  kept  and  used  as  previously  under  said 
custom,  until  replcAded  in  this  action. 

The  contract  for  the  keeping  of  the  horse  between  Howard  Vinal 
and  the  defendant  was,  that  for  its  keeping  the  defendant  should  be 
paid  one  half  in  cash  and  one  half  in  groceries  from  the  shop,  and 
before  the  replevin  the  defendant,  or  some  person  by  his  order,  had 
received  groceries  to  the  amount  of  $50  in  part  pa^nnent  for  the  keep- 
ing. After  January  4,  1883,  and  about  ten  days  before  the  replevin, 
the  defendant  demanded  money  from  Howard  Vinal,  or  flour  or 
sugar  from  the  shop,  in  part  payment  of  the  sum  due  for  the  keeping 
of  the  horse.  Howard  promised  to  send  flour  for  that  purpose,  but 
failed  to  do  so,  and  in  explanation  told  the  defendant  that  the  stock 
of  his  shop,  horse,  etc.  had  been  sold  by  him  to  the  plaintiff;  and 


CIL\P.  II.]  VINAL   V.    SPOFFORD.  291 

thereupon  the  defendant  sent  a  person  in  his  employ  to  take  the 
horse,  then  at  the  shop  in  use  as  previously,  and  remove  the  same  to 
his  hverj^  stable;  and  the  horse  was  then  and  there  removed,  and 
remained  in  the  defendant's  livery  stable  until  replevied  in  this 
action. 

The  plaintiff  subsequently  at  said  liveiy  stable,  asked  the  defend- 
ant to  give  him  a  statement  of  how  much  he,  the  plaintiff,  owed  for 
the  keeping  of  the  horse,  offering  to  pay  the  same;  but  the  defendant 
refused  to  state  any  claim  for  the  keeping  of  the  horse  against  the 
plaintiff,  declaring  that  the  plaintiff  owed  him  nothing  for  that 
keeping,  but  that  his  father,  Howard  Vinal,  owed  for  that  keeping; 
and  thereupon  this  action  was  brought. 

The  foregoing  is  a  statement  of  all  the  facts  of  which  there  was  any 
evidence  at  the  trial. 

The  defendant  requested  the  judge  to  rule,  that  he  had  the  right 
to  take  and  to  hold  the  horse,  by  virtue  of  his  lien  as  a  livery  stable 
keeper,  for  the  keeping  of  the  horse,  and  that  this  lien  was  not  im- 
paired or  interrupted  by  allowing  the  owner  of  the  horse  to  use  the 
same  in  his  business  of  a  grocer;  that  the  facts  and  circumstances  in 
evidence  of  his  allowing  the  o\Mier  of  said  horse  the  use  of  the  same 
did  not,  in  law,  constitute  a  waiver  of  such  lien;  and  that  the  sale  of 
the  horse  by  HoAvard  Vinal  to  the  plaintiff,  without  the  knowledge  of 
the  defendant  until  after  he  had  taken  the  horse  to  his  stable,  could 
not  operate  to  defeat  the  lien  which  he  asserted  for  the  keeping  of  the 
horse  to  the  time  of  the  sale  and  afterwards. 

The  judge  refused  to  rule  as  requested  by  the  defendant,  and  ruled 
that,  upon  the  facts  and  circumstances  in  evidence,  the  defendant 
could  not  maintain  the  lien  claimed  by  him  against  the  plaintiff's 
right  to  the  possession  of  the  horse  under  his  purchase  of  the  same 
from  Howard  Vinal,  or  under  his  retaking  of  the  horse  at  said  shop 
upon  obtaining  knowledge  of  the  purchase. 

The  defendant  contended  that  the  sale  of  the  horse  by  Howard 
Vinal  to  the  plaintiff  was  not  an  actual  sale,  but  a  colorable  one,  and 
fraudulent;  and  that,  on  the  morning  of  the  day  when  the  defendant 
retook  the  horse,  the  defendant  had  been  induced  to  permit  the  horse 
to  be  taken  from  his  possession  and  from  his  livery  stable  by  the 
fraudulent  promise  of  Howard  Vinal  to  send  to  the  defendant  flour 
from  his  shop,  in  part  payment  for  the  money  then  due  for  the  keep- 
ing of  said  horse. 

The  jury  found  specially,  upon  questions  submitted  to  them,  that 
the  sale  of  the  horse  by  said  Howard  Vinal  to  the  plaintiff  was  a  valid 
sale,  made  in  good  faith  and  for  a  valuable  consideration,  and  that 
the  horse  was  not  obtained  from  the  livery  stal^le  of  the  defendant 
by  false  and  fraudulent  representations;  and  returned  a  general  ver- 
dict for  the  plaintiff.  The  defendant  alleged  exceptions. 

Holmes,  J.     1.  When  replevin  is  brought  for  a  number  of  chat- 


292  VINAL    V.    SPOFFORD.  [CHAP.  H. 

tels,  some  of  which  belong  to  the  plaintiff  and  others  to  the  defend- 
ant, although  all  are  declared  for  in  one  eount,  the  case  is  dealt 
with  as  if  there  were  two  counts,  and  each  party  was  entitled  to  pre- 
vail upon  one.  Seymour  v.  Billings,  12  Wend,  285;  Williams  v.  Beede, 
15  N.H.  483.  Each  party  is  an  actor,  and  each  may  have  a  judgment 
and  legal  costs,  as  happened  in  this  case.  Powell  v.  Hinsdale,  5  Mass. 
343.  These  judgments  are  distinct,  and  it  follows  that  an  appeal  by 
one  party  only  from  the  judgment  against  him  does  not  reopen  the 
judgment  in  his  favor.  Pub.  Sts.,  c.  154,  §§  39,  43;  c.  155,  §  28.  Jus- 
tice and  analogy  lead  to  the  same  result.  See  Downing  v.  Coyne,  121 
]\Iass.  347;  Whiting  v.  Cochran,  9  Mass.  532;  May  v.  Gates,  137  JMass. 
389;  M'Donough  v.  Dannery,  3  Dall.  188,  198. 

2.  The  jury  have  found  that  the  plaintiff  bought  the  horse  in  good 
faith  and  for  a  valuable  consideration,  and  that  it  was  not  obtained 
from  the  defendant's  stable  by  fraud.  On  the  bill  of  exceptions  we 
must  assume  that  the  previous  owner  of  the  horse  rightfully  took  it 
from  the  defendant's  custody  and  delivered  it  to  the  plaintiff.  Such 
a  transaction  would  divest  a  common-law  lien.  Perkins  v.  Boardman, 
14  Gray,  481.  We  are  of  opinion  that  it  equally  divested  that  which 
the  defendant  had  previously  acquired  under  the  Pub.  Sts.,  c.  192, 
§  32  (St.  1878,  c.  208).  That  statute  creates  a  lien  in  cases  where  the 
common  law  has  not  recognized  one.  Goodrich  v.  Willai'd,  7  Gray, 
183.  But  it  gives  no  intimation  that  it  uses  the  word  "lien"  in  any 
different  sense  from  that  which  is  knoTVTi  to  the  common  law.  On  the 
contrary,  it  in  terms  supposes  that  the  animals  in  question  have  been 
placed  in  the  care,  that  is  to  say,  in  the  possession,  of  the  party  to 
whom  the  lien  is  given.  The  provisions  for  sale  would  seem  to  imply 
the  same  thing.  To  admit  that  it  was  intended  to  create  a  tacit  hj-po- 
thecation,  like  that  enforced  from  necessity,  but  within  narrow  lim- 
its, in  the  admiralty,  would  be  to  go  in  the  face  of  the  whole  policy  of 
our  statutes,  which  always  strive  to  secure  public  registration  when 
possession  is  not  given  and  retained,  and  which  expressly  provide  for 
such  registration  when  they  in  terms  create  a  lien  not  depending  on 
possession.  It  follows  from  what  we  have  said,  that,  even  if  the 
defendant  had  had  a  lien  for  the  keeping  of  the  horse  after  the  sale, 
or  whatever  might  be  the  rule  when  the  animal  was  voluntarily 
restored  to  his  possession,  he  lost  it  by  allowing  the  plaintiff  to  take 
possession,  and  could  not  revive  his  right  by  seizing  the  horse. 
Thompson  v.  Dolliver,  132  Mass.  103.  Walker  v.  Staples,  5  Allen,  34 
Papineau  v.  Wentworth,  136  Mass.  543.  Exceptions  overruled. 

Note.  —  See,  accord,  Fishell  v.  Morris,  57  Conn.  547. 


CHAP,  n.]  CALDWELL  V.    TUTT.  293 

CALDWELL  v.   TUTT. 

10  Lea  (Tenn.)  25S.     1882. 

Freeman,  J.,  delivered  the  opinion  of  the  court. 

This  case  is  as  follows:  Plaintiffs  are  livery  stable  keepers  in  the 
city  of  Clarksville.  Mr.  Mumford  had  placed  his  horse  in  the  stable 
to  be  kept  by  the  o"^Tiers  of  the  stable.  He  was  in  the  habit  of  taking 
said  horse  from  the  stable  occasionally  for  a  ride,  by  and  with  the 
consent  of  the  keepers  of  the  stable.  While  riding  him  on  one  of 
these  occasions,  the  horse  was  levied  on  by  defendant,  a  constable, 
by  virtue  of  an  execution  against  the  owTier. 

The  question  submitted  to  the  court  was,  whether  the  livery 
stable  keepers,  whose  bill  for  board  of  the  horse  was  unpaid,  had  a 
lien  on  the  horse  for  its  payment,  or  the  execution  levy  was  superior 
to  it?  The  circuit  judge  decided  in  favor  of  the  defendant,  and  that 
on  these  facts  no  lien  existed  at  the  time  of  the  levy,  from  which  there 
is  an  appeal  in  error  to  this  court. 

The  case  turns  mainly  on  sections  1993  a  and  1993  c  of  the  Code. 
The  first  provides :  "  Whenever  any  horse  or  other  animal  is  received 
to  pasture  for  a  consideration,  the  former  shall  have  a  lien  upon  the 
animal  for  his  proper  charges,  the  same  as  the  inn-keeper's  lien  at 
common  law."  The  latter  section  is:  "Livery  stable  keepers  shall  be 
entitled  to  the  same  lien  provided  for  in  section  1  of  this  act,  on  all 
stock  received  by  them  for  board  and  feed,  until  all  reasonable 
charges  are  paid." 

The  question  then  is,  would  an  inn-keeper  be  entitled  to  his  lien 
under  the  facts  in  this  case?  for  the  livery  stable  keeper  has  such  a 
lieri  as  the  inn-keeper,  until  all  reasonable  charges  are  paid.  The 
nature  of  the  business,  and  necessarj'  implications  arising  from  the 
character  of  the  undertaking  or  contract  is  to  be  taken  into  consider- 
ation, in  arriving  at  the  proper  result. 

The  right  of  the  inn-keeper  is  to  detain  or  hold  the  horse  till  the 
price  of  his  provender  is  paid:  3  Parsons,  249.  Mr.  Parsons  adds: 
"What  shows  the  spirit  and  principle  of  the  rule,  if  he  permit  his 
guest  or  horse  to  depart  on  credit,  he  loses  his  lien,  and  can  never 
arrest  it  after  for  that  debt  if  the  guest  come  again." 

Take  the  nature  of  this  contract,  and  its  surroundings,  and  apply 
this  rule  in  its  spirit,  and  we  have  the  solution  of  the  question. 

The  party  puts  his  horse  to  board  at  a  livery  stable  in  his  o\\ti 
to^NTi.  He,  as  owner,  takes  his  horse  out  temporarily  for  a  ride,  it  may 
be  of  a  morning  or  an  evening  for  exercising  himself  or  horse,  or 
both.  The  inn-keeper  pei-mits  this  —  as  was  fairly  implied  in  the 
nature  of  the  contract.  It  certainly  cannot  be  maintained,  that  he 
thereby  intends  to  permit  the  party  to  depart  with  the  horse,  and 
credit  him  for  the  board;  on  the  contrary,  it  is  well  understood  that 


294  REEVES    V.    CAPPER,  [CHAP.  U. 

the  possession  will  in  a  short  time  be  restored.  The  horse  is  not  in- 
tended to  be  allowed  to  depart  from  his  custody  so  as  to  end  the 
bailment,  but  only  a  temporary  user  of  the  owner  to  be  allowed.  In  a 
word,  neither  party  thought  of  terminating  the  contract  —  or  of  the 
one  taking  and  the  other  yielding  possession,  so  as  to  give  an  indi- 
vidual credit  alone  for  the  board,  and  release  thereby  the  lien  of  the 
livery  man. 

This  being  the  fair  meaning  of  the  contract,  and  of  the  acts  of  the 
parties,  it  would  seem  unquestionable,  that  as  against  Mumford,  the 
livery  keeper  would  have  still  retained  his  lien,  and  if  so  his  creditor 
must  take  his  shoes,  and  can  only  take  his  property  cum  onere,  as  the 
owner  himself  held  it  at  the  time  of  seizure.  It  would  have  been  a 
fraud  on  the  part  of  Mumford,  had  he  assented  to  what  had  been 
done,  terminated  the  bailment,  and  released  the  lien.  His  creditor 
can  stand  no  higher. 


REEVES  V.   CAPPER. 

5  Bing.  N.  C.  136.     1838. 

Wilson  was  captain  of  a  ship  owned  by  Messrs.  Capper.  Wilson 
borrowed  £50  from  them,  on  the  security  of  a  chronometer,  and 
Messrs.  Capper  consented  that  he  should  take  the  chronometer  on 
the  ship  for  use  during  a  voyage  about  to  be  begun,  and  Wilson  so 
took  it.  One  of  the  questions  in  the  case  was  whether  Messrs.  Capper 
had  thereby  lost  their  rights  as  pledgees  of  the  chronometer. 

TiNDAL,  C.J.  We  agree  entirely  with  the  doctrine  laid  down  in 
Ryall  V.  Rolh,  1  Atk.  165,  that  in  the  case  of  a  simple  pawn  of  a  per- 
sonal chattel,  if  the  creditor  parts  -^dth  the  possession  he  loses  his 
property  in  the  pledge :  but  we  think  the  delivery  of  the  chronometer 
to  Wilson  under  the  terms  of  the  agreement  itself  was  not  a  parting 
with  the  possession,  but  that  the  possession  of  Captain  Wilson  was 
still  the  possession  of  Messrs.  Capper.  The  terms  of  the  agreement 
were,  that  "  they  would  allow  him  the  use  of  it  for  the  voyage : "  words 
that  gave  him  no  interest  in  the  chronometer,  but  only  a  licence  or 
permission  to  use  it,  for  a  limited  time,  whilst  he  continued  as  their 
servant,  and  employed  it  for  the  puipose  of  navigating  their  ship. 
During  the  continuance  of  the  voyage,  and  when  the  voyage  ter- 
minated, the  possession  of  Captain  Wilson  was  the  possession  of 
Messrs.  Capper;  just  as  the  possession  of  plate  by  a  butler  is  the 
possession  of  the  master;  and  the  delivery  over  to  the  plaintiff  was,  as 
between  Captain  Wilson  and  the  defendants  a  wrongful  act,  just  as 
the  delivery  over  of  the  plate  by  the  butler  to  a  stranger  would  have 
been;  and  could  give  no  more  right  to  the  bailee  than  Captain  Wilson 
had  himself.   We  therefore  think  the  property  belonged  to  the  de- 


CHAP.  II.]  MOORS    V.    READING.  295 

fendants,  and  that  the  rule  must  be  made  absolute  for  entering  the 
verdict  for  the  defendants. 

Rule  absolute. 


MOORS  V.   READING. 

167  Mass.  322.     1897. 

Replevin  of  a  quantity  of  iron.  Trial  in  the  Superior  Court,  before 
Blodgett,  J.,  who  ruled  that  the  action  could  not  be  maintained; 
directed  the  jury  to  return  a  verdict  for  the  defendants;  and,  at  the 
request  of  the  parties,  reported  the  case  for  the  determination  of  this 
court.  The  facts  appear  in  the  opinion. 

Allen,  J.  The  question  in  this  case  is  whether  there  was  any  evi- 
dence for  the  jury  that  the  plaintiffs  took  and  retained  possession  so 
as  to  give  them  a  valid  title  to  the  goods  replevied.  If  they  were 
mortgagees,  their  title  would  not  be  valid  unless  the  mortgaged 
property  was  delivered  to  and  retained  by  them,  no  record  of  the 
mortgages  having  been  made.  St.  1883,  c.  73,  §  2.  If,  however,  they 
were  pledgees,  their  title  would  also  fail  unless  the  property  was 
delivered  to  and  retained  by  them.  So  that  it  makes  no  dift'erence  in 
the  determination  of  the  case  whether  they  were  mortgagees  or 
pledgees.  Blanchard  v.  Cooke,  144  Mass.  207,  225. 

The  facts  upon  which  the  decision  must  depend  are  not  now  in 
dispute.  Those  which  were  proved,  or  which  the  plaintiffs'  evidence 
tended  to  prove,  may  be  summed  up  as  follows. 

One  Houdlette  was  a  dealer  in  iron,  carrying  a  stock  of  goods  in 
his  store  in  Boston.  In  1889  he  borrowed  money  of  the  plaintiffs, 
which  has  never  been  repaid,  and  Vv'hich  the  plaintiffs  sought  to 
secure  in  the  following  manner.  Houdlette  executed  to  the  plain- 
tiffs a  general  collateral  agreement,  so  called,  setting  forth  that  all  the 
merchandise  transferred  or  to  be  thereafter  transferred  by  him  to 
them  should  be  held  only  as  security  for  his  present  or  future  indebt- 
edness to  them.  He  also  from  time  to  time,  usually  about  once  a 
month,  executed  to  them  a  bill  of  sale  of  goods  in  his  store.  In  some 
instances,  but  not  always,  upon  receiving  the  bills  of  sale,  they  exe- 
cuted and  delivered  to  him  a  special  instrument  of  defeasance.  These 
bills  of  sale  were  intended  to  cover  all  of  the  stock  of  goods  in  store 
from  time  to  time,  and  did  so  cover  it,  except  so  far  as  new  goods  may 
have  come  in  between  the  dates  of  two  transactions,  or  as  goods  may 
have  been  released  on  orders,  as  hereinafter  stated.  Soon  after  the 
date  of  each  bill  of  sale,  the  plaintiffs  took  possession  by  going  to 
Houdlette's  store,  where  statements  were  made  by  or  in  behalf  of 
Houdlette  that  possession  of  the  goods  was  given,  and  on  behalf  of 
the  plaintiffs  that  possession  was  taken,  by  touching  some  of  them, 
by  appointing  Houdlette's  bookkeeper  as  agent  of  the  plaintiffs  to 


296  MOORS    V.    READING,  [CHAP.  II. 

take  and  hold  possession  of  the  goods  for  them,  and  by  his  accept- 
ance of  such  agency.  From  time  to  time,  as  new  bills  of  sale  were 
received,  the  plaintiffs  gave  wi'itten  orders  to  the  bookkeeper  to  de- 
liver to  Houdlette  portions  of  the  goods  included  in  former  bills  of 
sale.  These  orders  were  usually  for  round  amounts,  as  called  for  by 
Houdlette's  bookkeeper,  being  about  the  same  in  amount  as  the 
amounts  of  the  new  bills  of  sale;  the  amount  being  fixed  by  what 
the  bookkeeper  thought  would  be  sufficient  to  cover  the  deliveries 
by  Houdlette  for  the  next  month.  The  quantities  in  these  orders 
were  expressed  in  gross,  as,  for  example,  75,000  pounds  sheet  plate 
iron  and  steel,  50,000  pounds  angle  iron,  200  kegs  rivets.  It  was 
not  intended  to  make  sales  of  goods  in  excess  of  the  amounts  cov- 
ered by  these  orders;  but  Houdlette  made  sales  from  all  the  goods 
in  store,  without  regard  to  whether  they  had  or  had  not  been  re- 
leased by  the  plaintiffs,  and  this  was  permitted  by  the  bookkeeper. 
Whenever  the  bookkeeper  thought  the  amount  of  an  order  had 
been  fully  drawn,  he  would  get  a  new  one.  No  setting  apart  or  separ- 
ation of  the  goods  covered  by  these  orders  was  made;  and  new  goods 
as  they  came  in  were  mingled  with  the  old,  and  there  was  nothing  to 
distinguish  them.  Sales  were  made  from  the  general  stock  of  goods 
on  hand,  without  discrimination;  and  the  proceeds  of  the  sales  went  to 
Houdlette.  The  bookkeeper  was  paid  by  Houdlette,  and  the  plain- 
tiffs did  not  pay  or  agree  to  pay  him  an>i:hing.  Since  the  plaintiffs 
did  not  take  possession  on  the  day  of  the  date  of  each  bill  of  sale, 
there  were  usually  some  goods  in  the  store  which  had  come  in 
between  the  date  of  the  bill  of  sale  and  the  day  of  taking  possession, 
and  which  therefore  were  not  covered  by  the  bills  of  sale.  No  at- 
tempt was  made  to  keep  such  goods  separate.  The  above  methods 
were  pursued  for  nearly  four  years,  at  the  end  of  which  time  Houd- 
lette went  into  insolvency,  and  his  assignees  took  possession  of  the 
goods. 

If  it  be  assumed  that  there  was  from  time  to  time  a  sufficient 
taking  of  possession  by  the  plaintiffs  at  the  outset,  the  facts  effectu- 
ally negative  the  plaintiffs'  view  that  there  was  any  such  retention  of 
possession  by  them  as  to  meet  the  requirements  of  the  law.  The 
obvious  purpose  of  the  statutory  provision  as  to  unrecorded  mort- 
gages, and  of  the  rule  of  law  as  to  the  retention  of  possession  by 
pledgees,  is  to  prevent  mortgagors  or  pledgors,  by  means  of  their 
possession  of  the  property,  from  misleading  people  into  the  belief 
that  they  are  its  real  owners.  Accordingly  the  rule  is  general  that,  if 
mortgagors  whose  mortgages  are  unrecorded  and  pledgors  are  al- 
lowed to  remain  in  possession  of  the  mortgaged  or  pledged  property, 
the  mortgagees  or  pledgees  will  lose  their  lien.  Possession  or  control 
of  the  property  may  be  given  to  a  mortgagor  or  pledgor  for  certain 
special  purposes,  without  producing  this  effect:  e.g.  to  make  sale 
thereof  for  the  sole  benefit  of  the  mortgagee  or  pledgee,  or  to  keep 


CHAP,  n.]  MOORS    V.    READING.  297 

the  property  specifically  for  him  for  a  time  as  his  bailee  or  agent. 
There  are  numerous  cases  in  which  the  question  has  arisen  and  been 
determined  whether,  under  certain  particular  facts,  the  lien  of  a 
mortgagee  or  pledgee  has  been  lost  by  reason  of  permitting  the  mort- 
gagor or  pledgor  to  be  in  possession  of  the  property.  Kellogg  v.  To?np- 
son,  142  Mass.  76;  Moors  v.  Wyynan,  146  Mass.  60;  Thacher  v.  Moors, 
134  Mass.  156;  Thompson  v.  Dolliver,  132  Mass.  103;  Thayer  v. 
Dmight,  104  Mass.  254;  Wright  v.  Tetlow,  99  Mass.  397;  Carpenter  v. 
Snelling,  97  Mass.  452;  Walker  v.  Staples,  5  Allen,  34;  Way  v.  David- 
son, 12  Gray,  465;  Casey  v.  Cavaroc,  96  U.S.  467;  Bank  of  Leaven- 
worth V.  Himt,  11  Wall.  391;  Steele  v.  Benham,  84  N.Y.  634;  Button 
V.  Rathbone,  126  N.Y.  187;  Doyle  v.  Stevens,  4  Mich.  86;  First  Na- 
tional Bank  of  Stanton  v.  Summers,  75  Mich.  107;  Menzies  v.  Dodd, 
19  Wis.  343;  Hage  v.  Campbell,  78  Wis.  572;  Swiggett  v.  Dodson, 
38  Kans.  1^2;  Brunswick  v.  McClay,  7  Neb.  137;  Pickard  v.  Marriage, 
L.  R.  1  Ex.  D.  364;  Northwestern  Bank  v.  Poynter,  [1895]  A.  C.  56. 
No  one  of  these  cases  presents  facts  exactly  like  those  now  before  us. 
But  the  rule  to  be  deduced  from  them,  which  is  applicable  to  the 
present  case,  appears  to  be  clear.  The  plaintiffs  appointed  Houd- 
lette's  boolvkeeper  as  their  agent,  so  that  there  was  no  apparent 
change  of  possession.  The  goods  which  were  at  any  time  covered  by 
the  bills  of  sale  were  not  set  apart,  and  kept  separate  and  free  from 
intermixtm-e  with  other  goods  not  covered  by  the  bills  of  sale. 
Whenever  new  goods  were  bought  by  Houdlette,  they  were  added 
to  the  general  stock  on  hand.  Whenever  the  plaintiffs  gave  orders 
for  the  delivery  or  release  of  goods  to  Houdlette  in  order  to  enable 
him  to  make  current  sales,  no  separation  was  made  of  the  goods 
embraced  in  such  orders.  The  arrangement  was  made  with  the 
obvious  purpose,  or  at  any  rate  with  the  effect,  of  enabling  Houd- 
lette to  carry  on  his  business  in  the  usual  manner  and  without  excit- 
ing suspicion;  and  there  never  was  a  day,  so  far  as  appears,  when  he 
might  not  have  sold  any  particular  piece  or  parcel  of  goods  in  his 
store  without  violating  his  understanding  with  the  plaintiffs.  From 
month  to  month,  the  plaintiffs  sigTied  orders  for  the  release  of  goods 
in  gross  amounts  from  their  lien,  and  of  such  quantities  as  would 
probably  be  sufficient  to  supply  Houdlette's  customers;  and  new 
orders  of  the  same  kind  were  signed  as  often  as  was  necessary.  There 
was  no  attempt  to  keep  distinct  and  separate  any  specific  portions  of 
the  stock  of  goods,  as  those  which  were  subject  to  the  plaintiffs'  lien. 
This  was  the  habitual  and  universal  method  adopted  by  the  plain- 
tiffs or  by  their  agent. 

This  course  of  business  is  inconsistent  with  the  view  that  the 
plaintiffs  retained  possession  of  any  specific  part  of  the  goods.  There 
was  at  best  a  confusion  and  intermixture  of  mortgaged  with  unmort- 
gaged, or  of  pledged  with  unpledged  goods,  so  that  the  two  classes 
were  indistinguishable,  and  this  was  done  by  the  permission  or 


298  MOORS    V.    READING.  [CHAP.  II. 

through  the  neglect  of  the  plaintiffs  or  of  their  agent.  The  plaintiffs 
no  longer  retained  the  sole  possession  of  the  mortgaged  goods.  They 
either  lost  the  possession  entirely,  or  were  merely  tenants  in  common 
with  Houdlette.  Ryder  v.  Hathaway,  21  Pick.  298;  Forbes  v.  Fitch- 
hurg  Railroad,  133  Mass.  154,  160;  2  Kent,  Com.  365,  note,  and 
cases  cited;  Story,  Bailm.  §  40;  Willard  v.  Rice,  11  Met.  493;  Adams 
V.  Wildes,  107  Mass.  123;  /Steams  v.  Herrick,  132  Mass.  114;  The 
Idaho,  93  U.S.  575. 

Upon  the  undisputed  facts,  the  plaintiffs  failed  to  retain  such 
possession  as  the  law  requires  in  order  to  maintain  their  lien.  To 
hold  otherwise  would  enable  parties  to  practice  the  very  frauds 
which  the  statute  as  to  unrecorded  mortgages  of  personal  property, 
and  the  rule  of  law  as  to  the  duty  of  pledgees  to  retain  possession  of 
the  pledged  property,  seek  to  prevent. 

The  title  of  the  defendants  as  assignees  in  insolvency  of  Houdlette 
must  accordingly  prevail.  Bingham  v.  Jordan,  1  Allen,  373;  Low  v. 
Welch,  139  Mass.  33;  Blanchard  v.  Cooke,  144  Mass.  207,  218,  226; 
Casey  v.  Cavaroc,  96  U.  S.  467. 

Judgment  on  the  verdict  for  the  defendants. 


CHAP.  Ul]  RUGGLES  V.    WALKER.  299 


CHAPTER  IIL 
ASSIGNABILITY. 


RUGGLES  V.  WALKER. 

34  Vt.  468.     1861. 

The  plaintiff's  declaration  contained  counts  in  trespass  and  trover 
for  taking  and  converting  four  tons  of  starch.  Plea  not  guilty,  and 
trial  by  jury  at  the  December  term,  1859,  Poland,  J.,  presiding. 

The  plaintiff  gave  evidence  tending  to  prove  the  following  facts : 
In  March,  1859,  Daniel  Whipple  owned  a  starch  factory  in  LjTidon, 
and  that  the  defendant  owiied  a  quantity  of  potatoes  in  said  factory. 
Whipple  had  failed  and  all  his  property  had  been  attached,  and  he 
was  desirous  to  make  an  arrangement  so  that  he  could  have  the 
avails  of  his  personal  labor  for  his  own  use.  Accordingly  he  made  a 
contract  with  the  defendant  to  manufacture  his  potatoes  into  starch, 
for  which  the  defendant  was  to  pay  him  ten  dollars  per  ton  in 
advance. 

Whipple  commenced  working  the  potatoes,  and  when  he  had 
finished  three  or  four  tons  and  put  the  same  into  casks  and  had 
several  tons  finished  except  putting  the  starch  into  casks,  he  applied 
to  the  defendant  to  pay  him  for  what  he  had  finished,  and  told  the 
defendant  he  feared  he  would  be  trusteed  and  he  should  lose  his 
earnings.  This  was  on  Saturday,  April  3.  The  defendant  said  he 
could  not  pay  him  for  he  was  going  to  Boston,  and  on  the  next  Mon- 
day he  did  go  to  Boston. 

On  the  following  Thursday,  Whipple  applied  to  the  plaintiff  to 
advance  him  the  amount  of  his  lien  on  the  starch,  and  the  plaintiff 
then  let  Whipple  have  one  hundred  dollars.  At  the  same  time  Whip- 
ple delivered  to  the  plaintiff  eight  casks  of  the  starch,  being  about 
two  tons,  and  on  the  following  Monday,  Whipple  having  finished  the 
starch,  the  plaintiff  paid  him  the  balance  due  him  for  manufacturing 
the  starch,  making  in  all  the  sum  of  one  hundred  and  sixty-seven 
dollars  and  eighty-one  cents,  which  was  conceded  to  be  the  amount 
due  for  manufacturing  the  starch.  At  this  time  Whipple  delivered  to 
the  plaintiff  four  more  casks  of  starch  to  hold  as  security  for  the  pay- 
ment of  the  price  of  manufacturing.  The  whole  of  these  twelve  casks 
of  starch  were  moved  by  the  plaintiff  to  a  barn  a  few  rods  from  the 
factor^'  and  marked  with  the  plaintiff's  name.  The  plaintiff  notified 
the  defendant  that  he  had  purchased  Whipple's  claim  on  the  starch, 


300  EUGGLES    V.    WALKER.  [CHAP.  III. 

and  that  he  could  have  it  by  paying  what  he  had  paid  Whipple  on 
the  starch.  It  was  conceded  that  the  twelve  casks  contained  about 
three  tons  of  starch  worth  about  sixty  dollars  per  ton.  It  was  con- 
ceded that  on  the  day  that  the  plaintiff  took  the  last  four  casks  of 
starch  as  above  stated,  the  defendant  took  away  all  the  starch  from 
the  factory,  and  also  the  twelve  casks  so  delivered  to  the  plaintiff 
without  paying  the  price  for  manufacturing. 

The  defendant's  evidence  tended  to  contradict  the  plaintiff's  in 
several  particulars,  but  is  not  material  to  be  stated  in  order  to 
present  the  legal  questions  raised  on  the  trial. 

The  defendant's  counsel  claimed  and  requested  the  court  to 
charge  the  jury  — 

1st,  That  under  the  contract  between  Whipple  and  the  defendant, 
Whipple  had  no  valid  lien  on  the  starch  for  the  price  of  manufactur- 
ing the  same. 

2d,  That  if  he  had,  he  could  not  transfer  the  same  to  the  plaintiff, 
so  as  to  enable  him  rightfully  to  hold  the  starch  against  the  defend- 
ant. 

3d,  The  plaintiff  could  only  recover  for  the  hen  on  the  three  tons 
of  starch  in  his  possession,  at  the  rate  of  ten  dollars  per  ton,  and  not 
for  the  price  of  manufacturing  the  whole. 

But  the  court  declined  so  to  charge  the  jur}^  but  did  charge  them 
that  Whipple  had  a  lien  on  the  starch  for  the  price  of  manufacturing; 
that  he  could  transfer  the  same  to  the  plaintiff  with  a  portion  of  the 
starch,  so  as  to  give  the  plaintiff  a  lien  upon  the  same,  and  that  if  the 
defendant  had  notice  of  the  transfer  to  the  plaintiff  and  took  away 
the  starch  without  paying  or  offering  to  pay  the  price,  the  plaintiff 
would  be  entitled  to  recover  the  whole  price  of  manufacturing. 

The  defendant  excepted  to  the  refusal  to  charge  as  requested,  and 
to  so  much  of  the  charge  as  is  stated  above. 

Kellogg,  J.  The  first  question  in  this  case  is,  whether  Whipple, 
the  plaintiff's  assignor,  had  any  lien  on  the  property  which  is  the 
subject  of  the  action,  for  the  price  of  manufacturing  it;  and  the  sec- 
ond, whether  if  he  had  a  lien,  it  was  of  such  a  character  as  to  enable 
him  to  transfer  it  with  the  property  by  assignment  to  the  plaintiff, 
so  that  the  plaintiff  could  rightfully  hold  the  property  against  the 
defendant.  It  is  conceded  that  the  general  property  in  the  starch 
manufactured  by  Whipple  was  in  the  defendant. 
"  I.  A  lien  is  a  right  to  retain  in  one's  possession  another's  property 
until  some  demand  due  to  the  person  retaining  has  been  satisfied. 
Hammond  v.  Barclay,  2  East,  235.  It  is  a  settled  principle  that  where 
a  party  has,  in  the  way  of  his  trade  or  occupation,  bestowed  his 
money,  labor,  or  skill  upon  a  chattel,  in  the  alteration  and  improve- 
ment of  its  properties,  or  for  the  purpose  of  imparting  an  additional 
value  to  it,  he  has  a  lien  upon  it  for  a  fair  and  reasonable  remuner- 
ation, or  for  the  contract  price,  if  the  price  has  been  fixed  by  agree- 


CHAP.  III.]  RUGGLES    V.    WALKER.  301 

ment;  and  this,  though  the  chattel  be  dehvered  to  him  in  different 
parcels,  and  at  different  times,  if  the  work  to  be  done  under  the 
agreement  be  entire.  Chase  v.  Westmore,  5  Maule  and  S.  180.  This  is 
the  ordinary  lien  of  manufacturers,  workmen,  and  artificers.  Whip- 
ple was  therefore  entitled  to  this  lien  for  the  starch  manufactured  by 
him  for  the  defendant;  and  although  the  contract  called  for  the  pay- 
ment of  the  price  of  manufacturing  the  starch  in  advance,  j^et  we 
think  that  the  neglect  or  refusal  of  the  defendant  to  make  such  pay- 
ment should  not  affect  the  right  of  lien.  The  mere  existence  of  a 
special  agreement  will  not,  of  itself,  exclude  that  right  except  in  cases 
where  the  terms  of  the  agreement  are  inconsistent  with  it.  In 
McFarldnd  v.  Wheeler,  26  Wend.  467,  it  was  expressed  as  the  opinion 
of  the  comi,  that  when  goods  or  other  articles  subject  to  a  particular 
lien  are  delivered  in  part,  those  retained  may  be  held  to  secure  the 
payment  for  all  the  labor,  skill,  or  expense  laid  out  upon  the  whole 
under  one  and  the  same  contract  between  the  same  parties,  thus 
constituting  one  debt;  and  the  case  of  Blake  v.  Nicholson,  3  Maule 
and  S.  168,  is  alike  in  principle. 

II.  The  more  important  question  is,  whether  Whipple's  lien  was 
of  such  a  character  as  would  enable  him  to  transfer  it  with  the  prop- 
erty by  assignment  to  the  plaintiff.  The  rule,  as  generally  stated  by 
text  writers,  is  that  the  right  of  lien  is  a  personal  right  which  cannot 
be  parted  with,  and  that  a  person  who  has  a  lien  can  not  sell  his 
right  to  another,  nor  can  he  transfer  the  property  over  which  the  lien 
extends,  wdthout  losing  his  right,  unless  the  property  has  been 
pledged  to  secure  the  payment  of  money  advanced,  with  an  express 
or  implied  power  of  sale.  2  Kent's  Comm.,642;  Addison  on  Con- 
tracts, 1155.  It  is  said  by  Duller,  J.,  in  Lickbarrow  v.  Mason,  6 
East,  27,  in  notis,  that  he  who  has  a  lien  only  on  goods  has  no  right 
to  sell  or  dispose  of  them,  but  only  to  retain  them  until  the  original 
price  be  paid;  and  the  same  profound  jurist  says,  in  Dauhigny  v. 
Duval,  5  D.  &  E.  60-4,  that  "a  lien  is  a  personal  right,  and  can  not  be 
transferred  to  another."  An  innkeeper  who  has  a  lien  on  the  horse 
of  his  guest  for  his  keeping  has  no  right  to  sell  the  horse  except  by  the 
custom  of  London.  Jones  v.  Pearle,  1  Str.  556;  The  case  of  an  Hostler, 
Yelv.  67.  In  Holly  v.  Huggeford,  8  Pick.  73,  the  lien  of  a  factor  was 
held  to  be  a  personal  privilege  which  could  not  be  set  up  by  any  other 
person  in  defence  of  an  action  by  the  principal.  The  case  of  Doane  v. 
Russell,  3  Gray,  382,  fully  recognizes  the  rule  that  the  right  of  lien  is 
a  personal  right  to  detain  in  contra-distinction  to  an  interest  in  the 
property,  and  that  if  a  party  parts  with  the  article  by  a  pledge,  sale 
or  otherwise,  he  loses  his  lien.  In  that  case,  the  question  was  whether 
the  defendant  who  held  a  mechanic's  lien  on  a  wagon  for  the  pay- 
ment of  his  work  and  materials,  had  a  right,  upon  notice,  and  in 
case  the  bill  was  not  paid  in  a  reasonable  time,  to  sell  the  wagon  to 
enforce  the  lien;  and  it  was  held  that  he  had  no  such  right,  and  that  a 


302  RUGGLES   V.    WALKER.  [CHAP.  m. 

party  having  a  lien  only,  without  a  power  of  sale  superadded  by 
agreement,  can  not  lawfully  sell  the  chattel  for  his  reimbursement. 
Shaw,  C.J.,  in  his  opinion  in  the  case,  distinguishes  between  a  lien 
for  work  and  materials,  as  given  by  what  was  anciently  called  the 
custom  of  the  realm,  or  now  the  general  law,  and  an  express  pawn  or 
pledge  of  goods  by  the  owner  as  collateral  security  for  a  loan  of 
money,  and  says  that  "in  the  latter  case,  it  is  now  held  that  when  the 
debt  has  become  due,  and  remains  unpaid,  the  creditor,  after  a  rea- 
sonable time,  may  sell  the  pledge;  but  othei-wise  when  there  is  a  mere 
lien,  as  in  the  case  of  mechanics,  innholders,  and  others  by  customs." 
The  distinction  is  this,  that  a  lien,  when  given  by  law,  is  merely  a 
right  to  retain  or  keep  possession  of  property  until  payment;  but  a 
pledge  of  property  by  way  of  security  for  a  debt  is  a  lien  with  a  power 
of  sale  superadded.  In  Lovett  v.  Brown,  40  N.  H.  51 1,  it  is  held  that  a 
mechanic's  or  manufacturer's  lien  is  neither  a  jus  ad  rem,  nor  a  jus 
in  re,  but  a  simple  right  of  retainer,  personal  to  the  party  in  whom  it 
exists,  and  not  assignable  or  attachable  as  personal  property,  or  a 
chose  in  action,  of  the  person  entitled  to  it.  The  Hen  in  such  cases  is  a 
mere  passive  lien  or  right  of  retainer,  and,  although  the  retention 
of  the  property  may  be  attended  with  expense,  and  may  be  of  no 
benefit  to  either  party,  these  considerations  will  not  change  the 
nature  of  the  lien  or  the  rights  conferred  by  it.  It  is  of  the  same 
nature  as  the  lien  of  an  attorney  or  solicitor  on  papers  for  his  costs, 
which  is  a  mere  personal  right,  and  one  that  can  not  be  actively 
enforced,  as  the  papers  can  not  be  sold  or  transferred,  but  can  only 
be  held  as  a  security.  Bozon  v.  Bolland,  4  Myl.  &  Cr.  354.  (18  Eng. 
Ch.,  S.C.)  Property  held  by  a  party  in  right  of  a  lien  can  not  form 
the  subject-matter  of  a  sale  by,  or  be  taken  on  execution  against,  the 
lienholder.  Lecjg  v.  Evans,  6  M.  &  W.  36;  Holly  v.  Huggeford,  ubi 
supra;  Kittredge  v.  Sumner,  11  Pick.  50. 

We  regard  it  as  well  established  by  the  authorities  referred  to  that 
Whipple's  right  of  lien  was,  while  the  property  remained  in  his  pos- 
session, a  personal  privilege  which  he  could  not  sell  or  transfer  except 
with  the  consent  of  the  defendant,  who  was  the  general  owmer  of  the 
property;  that  possession  was  essential  not  only  to  the  creation,  but 
also  to  the  continuance,  of  the  lien;  and  that  when  Whipple  parted 
with  his  dominion  over  the  property,  and  suffered  its  locality  to  be 
changed,  so  as  to  put  it  out  of  his  power  to  surrender  it  on  demand  to 
the  general  owner,  on  payment  or  tender  of  the  price  of  manufactur- 
ing it,  his  right  of  lien  was  determined  and  forfeited.  The  transfer  by 
Whipple  of  his  right  of  lien  to  the  plaintiff  was  consequently  inoper- 
ative, and  passed  no  right  or  interest  in  the  property  to  the  plaintiff. 
A  different  view  of  the  law  of  the  case  having  been  taken  by  the 
county  court  in  the  instructions  given  to  the  jury,  the  judgment  of 
that  court  in  favor  of  the  plaintiff  is  reversed,  and  a  new  trial 
granted. 


CHAP.  III.J  NASH    V.    MOSHER.  303 

NASH  V.  MOSHER. 

19  Wend.  (N.Y.)  431.    1838. 

A  LiENHOLDER  Consented  that  a  third  person  should  take  the 
wagon  upon  which  he  had  a  lien,  upon  becoming  accountable  for 
the  amount  due  him.  One  of  the  questions  was  whether  this  person, 
having  taken  the  wagon  and  thereafter  paid  such  amount  to  the 
lienholder,  could  assert  the  lien  as  against  the  owner  of  the  wagon. 

CowEN,  J.  Of  the  general  right  of  a  mechanic  to  sell  his  debt  and 
transfer  the  property  held  in  lien  as  security,  I  perceive  there  was 
formerly  considerable  doubt.  This  and  all  other  like  Hens  raised  by 
law  for  the  benefit  of  trade  and  manufactures,  as  I  take  it,  stand  on 
the  same  footing  in  point  of  assignability  with  the  factor's  lien.  Of 
this  BuLLER,  J.,  said  in  DavMgny  v.  Duval,  6  T.  R.  604,  606,  "a 
lien  is  a  personal  right,  and  cannot  be  assigned  to  another.''  That, 
however,  was  not  held  so  plain,  but  that  when  M'Combie  v.  Davies, 
7  East,  5,  came  to  be  heard.  Lord  Ellenborough  put  it  that  the 
factor  could  not  tortiously  pledge  the  goods,  though  he  might  continue 
the  lien  by  delivering  them  over  to  another,  as  his  servant,  to  hold 
xhe  possession  in  his  ovm  name.  His  lordship  evidently  thinks  that 
he  cannot  go  further.  He  concludes  at  first  that  a  parting  vath  the 
possession  to  another  assignee,  would  be  a  waiver,  or  forfeiture  of  the 
lien.  Such  he  assumes  to  have  been  the  notion  of  Buller,  J.,  in 
Dauhigny  v.  Duval;  for  he  says  Lord  Kenyon,  who  dissented  there, 
seemed  after^-ards  fully  to  have  acceded  to  the  doctrine,  when  he 
says  in  Sweet  v.  Pym,  1  East,  4,  "The  right  of  lien  has  never  been 
carried  farther  than  while  the  goods  continue  in  possession  of  the 
party  claiming  it."  I  admit  that  the  court  in  M'Combie  v.  Davies 
finally  seem  to  agi-ee  that  if  the  goods  and  lien  be  passed  over,  as  a 
mere  security  to  another  for  a  debt,  the  lien  might  thus  be  preserved. 
7  East  7, 8;  and  see  7  Cowen,  680;  11  Wend.  79.  If  it  may  be  passed 
over  as  a  security,  of  course  it  may  be  sold,  provided  the  parties, 
vendor  and  vendee,  do  not  seek  to  pass  a  greater  right  than  the  lien, 
but  both  act  in  strict  subordination  to  the  claim  of  the  principal 
crnier.  I  confess  I  see  nothing  in  this  repugnant  to  the  interests  of 
commerce;  and  it  accords  with  what  is  certainly  the  general  rule, 
that  all  rights  of  property,  whether  they  be  in  possession,  in  action 
or  retainer,  are  assignable.  Indeed  it  now  stands  admitted,  "that 
a  factor  has  a  right  to  assign  or  deliver  over  the  goods  as  a  pledge  or 
security  to  the  extent  of  his  lien  thereon,  if  he  avowedly  confines  the 
assignment  or  pledge  to  that;  and  does  not  exceed  his  interest." 
Story  on  Bailm.  216,  and  the  cases  there  cited,  note  2;  2  Kent's 
Com.  489  of  the  1st,  and  626  of  the  2d  ed.;  Urquhart  v.  Mclvcr,  4 
Johns.  R.  103,  115,  116,  117.  Urquhart  v.  Mclver  seems  to  settle  the 
question  in  favor  of  the  position  as  laid  down  by  the  two  learned 


304  GOSS    V.    EMERSON.  [CHAP.  III. 

commentators.  There  a  ship  was  assigned  by  the  factor  as  a  security 
to  the  extent  of  his  Hens.  That  per  se  was  held  not  to  be  tortious; 
but  a  vahd  transaction.  Bates  did  nothing  more  in  this  case;  and  I 
incline  to  think  that  the  transaction,  as  far  as  he  acted,  was  a  valid  one. 

Note.  —  In  Hoover  v.  Epler,  52  Pa.  522,  a  groom  had  been  em- 
ployed to  care  for  a  horse.  He  caused  a  farrier  to  shoe  the  horse  and 
paid  his  bill.  He  was  held  entitled  to  enforce  the  farrier's  lien. 

In  M'Combie  v.  Davies,  7  East  5,  Lord  Ellenborough  said  (p.  7) 
that  if  a  lienholder,  intending  to  give  a  security  to  another  to  the 
extent  of  his  lien,  "delivers  over  the  actual  possession  of  the  goods, 
on  which  he  has  the  Uen,  to  that  other,  with  notice  of  his  lien,  and 
appoints  that  other  as  his  servant  to  keep  possession  of  the  goods 
for  him,  in  [such]  case  he  might  preserve  the  lien." 

The  doctrine  that  the  benefit  of  a  lien  may  be  given  by  the  lien- 
holder  to  another  person  is  supported  by  Davis  v.  National  Surety 
Co.,  139  Cal.  223;  DeWitt  v.  Prescott,  51  Mich.  298,  304;  Rod- 
gers  v.  Grothe,  58  Pa.  414,  419;  Davis  v.  Bigler,  62  Pa.  242,  251; 
Bean  v.  Bolton,  3  Phila.  (Pa.)  87,  89;  Gurney  v.  James,  19  U.  C.  Q.  B. 
156.  See  also  Buckner  v.  M'llroy,  31  Ark.  631;  Murphy  v.  Adams, 
71  Me.  113,  119. 


GOSS  V.   EMERSON. 

23  N.H.  38.     1851. 

Trover,  for  four  promissory  notes,  given  by  one  Hatch  to  the 
plaintiff,  on  the  8th  of  April,  1846,  for  fifty  dollars  each,  and  payable 
to  him,  or  order,  in  one,  two,  three  and  four  years.  The  writ  was 
dated  September  29th,  1848;  and  was  served  on  the  same  day,  but 
not  till  after  the  transactions  hereinafter  set  forth. 

Plea,  the  general  issue. 

It  appeared  in  evidence  that  on  the  29th  of  March,  1848,  the 
plaintiff  gave  to  the  defendant  the  following  note,  or  accountable 
paper,  to  wdt: 

"Hartford,  March  29th,  1848. 

"Received  of  D.  B.  Emerson,  the  sum  of  two  hundred  and  three 
dollars  and  seventy-eight  cents,  which  I  promise  to  pay  to  him  or 
order,  in  six  months  from  date,  with  interest.  When  the  above  sum 
of  two  hundred  and  three  dollars  and  seventy-eight  cents  is  paid, 
four  notes  of  fifty  dollars  each,  signed  by  W.  Hatch,  running  to  L. 
Goss,  are  to  be  given  up  to  him. 

(Signed,)  Levi  Goss." 

And  on  the  same  day  the  defendant  gave  to  the  plaintiff  the 
following  paper: 


CHAP.  III.]  GOSS    V.    EMERSON.  305 

"Hartford,  March  29th,  1848. 
"Received  of  Levi  Goss,  four  notes  of  fifty  dollars  each,  signed 
by  Wm.  Hatch,  which  I  agree  to  return  to  him  when  he  paj^s  a  note 
of  two  hundred  and  three  dollars  and  seventy-eight  cents,  signed  this 
day,  running  to  me. 

(Signed,)  D.  B.  Emerson." 

It  was  admitted  that  the  note  referred  to  in  the  last  receipt  was 
the  above  paper  signed  by  said  Goss.  It  appeared  that  when  the 
above  papers  were  signed  by  the  parties,  the  four  notes  were  put  into 
the  hands  of  the  defendant,  that  they  were  negotiable,  and  of  the 
description  set  forth  in  the  plaintiff's  writ,  and  that  the  plaintiff  did 
not  indorse  them,  when  he  passed  them  to  the  defendant. 

On  the  next  day,  March  30th,  the  defendant  went  to  Hatch  with 
the  notes,  two  or  three  times,  and  desired  him  tq  promise  to  pay  the 
same  to  him.  Hatch  declined,  but  said  he  would  pay  them  to  whom- 
soever the  holder  might  be  when  they  fell  due.  On  the  next  day,  or 
day  after,  the  defendant  passed  the  note  or  accountable  paper, 
signed  by  the  plaintiff,  to  one  Kingsbury,  who  paid  him  the  amount 
due  on  the  same,  and  also  at  the  same  time  delivered  to  him  the  four 
notes,  ^\dth  the  understanding  between  himself  and  Kingsbury,  that 
he  should  hold  the  notes  as  security  for  the  S203.78,  in  the  same  man- 
ner as  Emerson  had.  Within  three  or  four  days  thereafter,  Kings- 
bury went  to  Hatch  and  arranged  with  him  to  take  up  the  four  notes 
and  give  four  others  of  the  same  amount  and  dates,  payable  to  Kings- 
bury or  bearer.  This  was  done,  and  Hatch  then  took  up  the  notes  for 
which  this  suit  was  instituted,  and  canceled  the  same,  and  gave  four, 
payable  to  Kingsbury  or  bearer.  These  last  notes  Kingsbury  imme- 
diately passed  to  one  Tenney  and  received  the  cash  therefor.  The 
transactions  of  Kingsbury  with  Hatch  and  Tenney  were  not  known 
to  Emerson  till  after  they  were  completed. 

The  plaintiff  did  not  know  of  the  transfer  of  the  notes  to  Kings- 
bury, nor  of  any  thing  which  Emerson,  Kingsbury,  Tenney  or  Hatch 
did  till  long  afterwards,  nor  did  he  in  any  way,  at  any  time,  assent  to 
what  was  done. 

Perley,  J.  The  note  given  by  the  plaintiff  to  the  defendant, 
March  29,  1848,  was  negotiable.  It  was  an  absolute  undertaking  to 
pay  S203.78,  to  the  plaintiff  or  order,  in  six  months  with  interest. 
A  contract,  by  the  same  wTiting  and  on  the  same  consideration,  to 
pay  a  sum  of  money  and  also  to  deliver  goods,  is  not  a  negotiable 
note;  because,  the  contract  being  entire,  and  not  negotiable  as  to  the 
goods,  it  cannot  be  negotiable  as  to  the  money.  The  note  in  the  case 
merely  recites  the  consideration;  the  undertaking  is  to  pay  absolutely 
in  money,  and  in  money  alone. 

The  four  notes,  for  which  this  suit  was  brought,  were  delivered  to 
the  plaintiff,  in  pledge,  to  secure  payment  of  the  plaintiff's  note.  By 


306  GOSS   V.    EMERSON.  [CHAP.  in. 

the  written  agreement  of  the  defendant,  the  plaintiff  was  to  have 
these  notes  back  when  he  paid  his  note  of  S203.78.  The  plaintiff  was 
to  pay  his  note;  that  is  to  say,  he  was  to  pay  S203.78,  and  interest,  to 
the  defendant  or  his  indorsee,  according  to  the  tenor  of  the  note. 
The  plaintiff,  by  the  obvious  construction  of  the  contract,  was  to 
make  payment  to  the  holder  of  the  note,  before  he  could  entitle  him- 
self to  a  return  of  the  securities,  pledged  for  its  payment.  The  de- 
fendant did  not  agree  to  restore  the  pledge,  when  the  plaintiff  should 
pay  him  S203.78  and  interest,  but  when  he  should  pay  the  note;  and 
pajTTient  of  the  money  to  the  defendant,  after  the  note  was  indorsed, 
would  not  pay  the  note.  The  note  could  only  be  paid  to  the  holder. 
The  tender,  therefore,  to  be  available  should  have  been  made  to  the 
holder;  but  the  tender  was  made  in  this  case  to  the  defendant,  after 
he  had  indorsed  and  transferred  the  note,  and  when  he  had  no  right 
to  the  money  due  on  it. 

It  is,  therefore,  unnecessaiy  to  consider  whether  the  tender  stated 
in  this  case  would  have  been  sufficient,  if  it  had  been  made  to  the 
proper  party. 

.       ^.         .........         . 

The  ge'heral  property  in  the  four  notes  pledged,  remained  in  the 
plaintiff;  but  the  defendant  took  them  in  pawn  for  the  pa;yTQent  of 
his  debt,  and  this  gave  him  an  interest  in  them,  which,  whether  his 
debt  were  negotiable  or  not,  he  could  lawfully  transfer  to  a  third  per- 
son. He  might  assign  all  his  interest  in  the  pledge;  or  he  might 
assign  it  conditionally,  to  secure  payment  of  his  own  debt;  or  he 
might  deliver  it  to  a  bailee,  without  consideration,  to  hold  as  a  de- 
posit for  him.  The  transfer  of  the  notes  in  any  one  of  these  ways 
would  be  a  legal  disposition  of  them,  authorized  by  the  nature  of  the 
defendant's  interest  as  paT\^iee. 

In  Jarvis  v.  Rogers,  15  Mass.  Eep.  408,  Jackson,  J.,  delivering 
the  opinion  of  the  cornet,  says:  "The  pawnee  may  deliver  the  goods 
to  a  stranger  without  consideration;  or  he  may  sell  or  assign  all  his 
interest  absolutely;  or  he  may  assign  it  conditionally  by  way  of 
pawn;  without  in  either  case  destroying  the  acquired  lien,  or  giving 
the  owner  the  right  to  reclaim  them  on  any  better  tenns  than  he 
could  have  done  before  such  delivery  or  assignment."  Sir  John 
Raidiffe  Y.Davis,  Yelverton,  178;  Dejnainhryv.  Metcalfe,  2  Vernon, 
690;  Bush  v.  Lyon,  9  Cowen,  56;  Bidlard  v.  Billings,  2  Vermont, 
309,  and  Story  on  Bailments,  219,  go  to  establish  the  same  general 
doctrine. 

Where  the  pledge  has  been  merely  bailed  to  a  third  person,  and  the 
whole  interest  remains  in  the  original  pawnee,  pajanent  or  tender 
may  be  made  to  him,  and  after  tender  to  the  pawnee,  the  bailee  on 
demand  will  be  liable  in  trover.  Ratcliffe  v.  Davis,  Yelverton,  178. 

But  where  the  interest  is  assigned  with  the  thing  pledged,  tender 
should  be  made  to  the  assignee.  Demainhry  v.  Metcalfe,  2  \'ernon,  690. 


1 


CHAP.  III.]  GOSS    V.    EMERSON.  307 

Murray  v.  Burling,  cited  for  the  plaintiff  from  10  Johnson,  172, 
does  not  appear  to  be  in  point.  In  that  case  the  note  was  entrusted 
to  the  defendant  to  raise  money  and  pay  the  plaintiff's  debt;  instead 
of  that,  the  defendant  transferred  the  note  in  payment  of  his  otvti 
debt,  in  direct  violation  of  his  trust  and  contrary  to  his  express 
undertaking. 

The  legal  nature  of  the  defendant's  interest  in  the  four  notes,  gave 
him  the  right  to  transfer  them  to  Kingsbury  with  the  negotiable  debt, 
which  they  were  pledged  to  secm'e.  Of  course  he  cannot  be  charged 
with  a  wrongful  conversion,  by  assigning  the  notes  to  Kingsbury. 

If  the  act  of  Kingsbury  in  delivering  up  the  notes  to  the  maker  vras 
a  conversion,  it  was  not  the  act  of  the  defendant.  He  had  legally 
parted  with  his  possession  and  all  his  interest.  Kingsbury  was  sub- 
stituted in  his  place  as  the  lawful  holder  of  the  securities,  and  the 
defendant  cannot  be  charged  with  the  wrongful  act  of  another,  over 
which  he  had  no  control.  A  mortgagee  might  as  well  be  held  liable 
for  the  destruction  of  the  mortgaged  property,  after  he  had  parted 
with  all  his  interest  by  a  valid  assignment. 

Note.  —  See,  accord,  Bank  of  Forsyth:  v.  Davis,  113  Ga.  341. 


BOOK  IV. 
CONVERSION. 


NOTE. 


If  a  owns  a  piece  of  land,  and  B  illegally  interferes  wath  it,  the  law 
requires  B  to  make  compensation  to  A  for  the  damage  done.  But 
that  is  the  extent  of  B's  liability. 

If  A  owns  a  chattel,  and  B  illegally  interferes  vdih  it,  the  law 
requires  B  to  make  compensation  to  A  for  the  damage  done.  But 
frequently  that  is  not  the  extent  of  B's  liability.  The  interference 
may  be  such  that  the  law  will  give  judgment  to  A  against  B  for  the 
full  value  of  the  chattel,  irrespective  of  the  damage  done.  (The 
satisfaction  of  such  judgment  will  transfer  A's  rights  in  the  chattel 
to  B,  and  it  is  often  said,  therefore,  that  the  interference  may  be  such 
that  the  law  will  require  B  to  purchase  the  chattel.) 

There  are  in  the  authorities  many  distinctions  between  actions  of 
trespass,  trover,  and  case  over  which  it  has  ceased  to  be  profitable 
to  linger.  If  A's  chattel  is  totally  destroj'ed  by  the  illegal  act  of  B, 
the  measure  of  damage  is  plain,  and  the  form  of  action  in  which  A 
obtains  relief  should  not  be,  and  in  most  jurisdictions  is  not,  impor- 
tant. But  for  what  interferences  by  B  with  the  chattel  of  A  v/ill  the 
law  give  judgment  to  A  against  B  for  the  full  value  of  the  chattel, 
irrespective  of  the  damage  done?  This  question  survives  the  oblit- 
eration of  fomis  of  action,  and  remains  a  question  of  the  first  im- 
portance. 

Such  interferences  are  commonly  called  conversions. 


SECT.  I.]  MCPARTLAND   V.    READ.  309 


CHAPTER  I. 
ACTS  CONSTITUTING   A  CONVERSION. 


SECTION   1. 


INTERFERING  WITH  THE  PLAINTIFF'S  POSSESSION  OR 
USE  OF  THE  CHATTEL. 

A^  Taking  the  Chattel  out  of  the  Plaintiff's  Possession. 


McPARTLAND  v.   READ. 

11  AU.  (Mass.)  231.     1865. 

Certain  furniture  of  the  plaintiff  was  attached  by  the  defendant 
Read,  who  was  a  deputy  sheriff,  on  a  writ  against  a  third  person. 
The  other  defendant,  Foque,  acted  as  the  agent  of  the  attaching 
creditor,  in  directing  and  assisting  in  the  attachment. 

Bigelow,  C.J.  Every  tortious  taking  with  intent  to  apply  chat- 
tels to  the  use  of  the  taker  or  some  other  person  than  the  owner  is  a 
conversion.  Both  defendants  were  liable.  It  was  not  necessary  in 
order  to  charge  them  to  show  that  each  actually  participated  in 
seizing  and  removing  the  property.  It  was  sufficient  to  prove  that 
both  were  present,  one  inciting  or  directing  the  wrongful  taking, 
and  the  other  obeying  the  order  and  carrying  it  into  effect.  Both 
were  principals  in  the  conversion. 

Note.  —  In  Donahue  v.  Shippee,  15  R.I.  453,  the  court  said 
(p.  455) :  ''Nor  does  the  fact  that  the  cutting  of  the  grass  was  unin- 
tentional, in  the  sense  that  it  was  done  in  ignorance  of  the  location  of 
the  boundary  line,  make  any  difference.  It  was,  nevertheless,  a 
VvTongful  assumption  of  dominion  over  the  property  of  the  plaintiff 
in  violation  of  his  right.  In  Boyce  v.  Brockway,  31  N.Y.  490,  493,  it 
is  said : '  Wrongful  intent  is  not  an  essential  clement  of  the  conversion. 
It  is  enough  that  the  rightful  owner  has  been  deprived  of  his  property 
by  some  unauthorized  act  of  another  assuming  dominion  or  control 
over  it.'  So,  too,  in  West  Jersey  R.R.  Co.  v.  Trenton  Car  Works  Co., 
32  N.J.  517,  520,  the  court  says:  'In  every  case  in  which  the  inquiry 
arises  whether  a  conversion  has  been  committed,  the  only  point  to  be 
settled  is  whether  the  defendant  has  applied  t    'lis  own  Bf?e  f  he  prop- 


310  rOULDES    V.    WILLOUGHBY.  ICHAP.  I. 

erty  of  another  without  his  permission  and  without  legal  right.  His 
motives  for  so  doing,  or  the  state  of  his  knowledge  with  reference  to 
the  right  of  such  ov/ner,  are  of  no  importance,  and  cannot  in  any 
respect  affect  the  case.' " 

Murphey  v.  Virgin,  47  Neb.  692.  The  defendant  by  force  took 
money  from  the  plaintiff.  It  was  no  defense  that  the  plaintiff  was 
indebted  to  the  defendant  in  an  amount  as  great  as  the  sum  taken. 

Summersett  v.  Jarvis,  3  Brod.  &  Bing.  2.  The  defendants  claimed  to 
be  the  assignees  in  bankruptcy  of  the  plamtiff.  They  insisted  on  the 
plaintiff's  delivering  up  his  books,  and  he  thereupon  delivered  them. 
The  fact  proved  to  be  that  the  plaintiff  was  not  subject  to  the  bank- 
ruptcy statute.  The  court  held  that,  as  the  defendants  had  taken 
the  books  when  they  were  armed  with  the  authority  of  assignees, 
the  plaintiff  must  be  deemed  to  have  delivered  them  up  on  com- 
pulsion, and  that  the  defendants  were  thereby  guilty  of  a  conver- 
sion. 

If  the  officer  purports  to  make  a  le\'y'  upon  goods,  but  does  not 
take  them  into  his  possession,  he  has  not  converted  them.  Herron  v. 
Hughes,  25  Cal.  555. 


FOULDES  V.  WILLOUGHBY. 

8  M.  &  W.  540.     1841. 

Trover  for  divers,  to  wit,  two  horses.  —  Plea,  not  guilty. 

The  cause  was  tried  before  Maule,  J.,  at  the  last  Spring  Assizes  for 
Liverpool,  when  it  appeared  that  the  defendant  was  the  occupier  or 
manager  of  a  ferry  by  means  of  steamboats  over  the  River  Mersey, 
from  Birkenhead  to  Liverpool,  and  that  on  the  15th  of  October  1840, 
the  plaintiff  had  embarked  on  board  the  defendant's  ferry-boat  at 
Birkenhead,  having  with  him  two  horses,  for  the  carriage  of  which  he 
had  paid  the  usual  fare.  It  was  alleged  that  the  plaintiff  miscon- 
ducted himself  and  behaved  improperly  after  he  came  on  board  the 
steam-boat,  and  when  the  defendant  came  on  board  he  told  the 
plaintiff  that  he  would  not  carry  the  horses  over,  and  that  he  must 
take  them  on  shore.  The  plaintiff  refused  to  do  so,  and  the  defendant 
took  the  horses  from  the  plamtiff,  who  was  holding  one  of  them  by 
the  bridle,  and  put  them  on  shore  on  the  landing  sHp.  They  were 
driven  to  the  top  of  the  shp,  which  was  separated  by  gates  from  the 
high  road,  and  turned  loose  on  the  road.  They  were  shortly  after- 
wards seen  in  the  stables  of  an  hotel  at  Birkenhead,  kept  by  the  de- 
fendant's brother.  The  plaintiff  remained  on  board  the  steam-boat, 
and  was  conveyed  over  the  river  to  Liverpool.  On  the  following  day 
the  plaintiff  sent  to  the  hotel  for  the  horses,  but  the  parties  in  whose 
possession  they  were  refused  to  deliver  them  up.  A  message,  how- 


SECT.  I.]  FOULDES    V.    WILLOUGHBY.  311 

ever,  was  afterwards  sent  to  him  by  the  hotel-keeper,  to  the  effect 
that  he  might  have  the  horses  on  sending  for  them  and  paying  for 
their  keep;  and  that  if  he  did  not  send  for  them  and  pay  for  their 
keep,  they  would  be  sold  to  pay  the  expense  of  it.  The  plaintiff  then 
brought  the  present  action.  The  horses  v;ere  subsequently  sold  by 
auction.  The  defence  set  up  at  the  trial  was,  that  the  plaintiff  had 
misconducted  himself  and  behaved  improperly  on  board,  and  that 
the  horses  were  sent  on  shore  in  order  to  get  rid  of  the  plaintiff,  by 
inducing  him  to  follow  them.  The  learned  Judge  told  the  jury,  that 
the  defendant,  by  taking  the  horses  from  the  plaintiff  and  turning 
them  out  of  the  vessel,  had  been  guilty  of  a  conversion,  unless  they 
thought  the  plaintiff's  conduct  had  justified  his  removal  from  the 
steam-boat,  and  he  had  refused  to  go  without  his  horses;  and  that  if 
they  thought  the  conversion  was  proved,  they  might  give  the  plaintiff 
damages  for  the  full  value  of  the  horses.  The  jury  found  a  verdict  for 
the  plaintiff  with  £40  damages,  the  value  of  the  horses. 

In  Easter  Term  last,  a  rule  was  obtained  calling  upon  the  plaintiff 
to  shew  cause  why  the  verdict  should  not  be  set  aside  on  the  ground 
of  misdirection,  both  as  to  the  proof  of  a  conversion,  and  also  as  to 
the  amount  of  the  damages :  against  which  rule 

W.  H.  Watson  and  Atherton  now  shewed  cause.  —  The  evidence 
shewed  that  which  clearly  amounted  to  a  conversion,  and  it  was  not 
affected  by  the  circumstance  that  the  plaintiff  had  the  means  after- 
wards, if  he  had  chosen,  of  obtaining  the  horses  again.  A  wrongful 
removal  of  a  chattel,  even  for  a  few  yards,  amounts  in  law  to  a  con- 
version. [Lord  Abinger,  C.  B.  —  According  to  that  argument  every 
trespass  is  a  conversion.]  If  a  man  takes  and  rides  another  person's 
horse  without  his  consent,  however  short  a  distance,  it  is  in  law  a 
conversion.  [Alderson,  B.  —  In  that  case  there  is  a  user  of  the 
horse.  Lord  Abinger,  C.  B.  —  In  this  case  the  horses  were  turned 
out  of  the  boat  by  the  defendant  because  the  owner  refused  to  take 
them  out,  and  not  with  anj'  \'iew  to  appropriate  them  to  his  own 
use,  but  to  get  rid  of  their  owner.  Alderson,  B.  —  If  a  man  were 
to  remove  my  carriage  a  few  yards,  and  then  leave  it,  would  he  be 
guilty  of  a  conversion?]  In  the  notes  to  Wilbraham  v.  Snow,  2  Saund. 
470,  it  is  said,  "Whenever  trespass  for  taking  goods  will  he,  that  is, 
where  they  are  taken  wrongfully,  trover  will  also  lie,  for  one  may 
qualify  but  not  increase  a  toil,";  citing  Cro.  Eliz.  824,  Bishop  v. 
Montague.  [Lord  Abinger,  C.  B.  —  I  cannot  agree  to  that  position, 
at  least  to  the  extent  for  which  it  is  now  used.] 

Lord  Abinger,  C.  B.  —  This  is  a  motion  to  set  aside  the  verdict  on 
the  ground  of  an  alleged  misdirection;  and  I  cannot  help  thinking  that 
if  the  learned  Judge  who  tried  the  cause  had  referred  to  the  long  and 
frequent  distinctions  which  have  been  taken  between  such  a  simple 
asportation  as  will  support  an  action  of  trespass,  and  those  circum- 
stances which  are  requisite  to  establish  a  conversion,  he  would  not 


312  FOULDES    V.    ■\\1LL0UGHBY.  [CHAP.  I. 

have  so  directed  the  jury.  It  is  a  proposition  familiar  to  all  lawyers, 
that  a  simple  asportation  of  a  chattel,  v\"ithout  any  intention  of  mak- 
ing any  further  use  of  it,  although  it  may  be  a  sufficient  foundation  for 
an  action  of  trespass,  is  not  sufficient  to  establish  a  conversion.  I  had 
thought  that  the  matter  had  been  fully  discussed,  and  this  distinc- 
tion established,  by  the  numerous  cases  which  have  occurred  on  this 
subject;  but,  according  to  the  argument  put  forward  by  the  plaintiff's 
counsel  to-day,  a  bare  asportavit  is  a  sufficient  foundation  to  support 
an  action  of  trover.  I  entirelj^  dissent  from  this  argument;  and  there- 
fore I  think  that  the  learned  Judge  was  wrong,  in  telling  the  juiy  that 
the  simple  fact  of  putting  these  horses  on  shore  by  the  defendant, 
amounted  to  a  conversion  of  them  to  his  own  use.  In  my  opinion,  he 
should  have  added  to  his  direction,  that  it  was  for  them  to  consider 
what  was  the  intention  of  the  defendant  in  so  doing.  If  the  object, 
and  whether  rightly  or  wi'ongfully  entertained  is  immaterial,  simply 
was  to  induce  the  plaintiff  to  go  on  shore  himself,  and  the  defendant, 
in  furtherance  of  that  object,  did  the  act  in  question,  it  was  not 
exercising  over  the  horses  any  right  inconsistent  with,  or  adverse  to, 
the  rights  which  the  plaintiff  had  in  them.  Suppose,  instead  of  the 
horses,  the  defendant  had  put  the  plaintiff  himself  on  shore,  and  on 
being  put  on  shore,  the  plaintiff  had  refused  to  take  his  horses  ■uith 
him,  and  the  defendant  had  said  he  would  take  them  to  the  other 
side  of  the  water,  and  had  done  so,  would  that  be  a  conversion? 
That  would  be  a  much  more  colourable  case  of  a  conversion  than  the 
present,  because,  by  separating  the  man  from  his  property,  it  might, 
with  some  appearance  of  fairness,  be  said  the  party  was  carrying 
away  the  horses  without  any  justifiable  reason  for  so  doing.  Then, 
having  conveyed  them  across  the  water,  and  finding  neither  the 
ov/ner  nor  any  one  else  to  receive  them,  what  is  he  to  do  with  them? 
Suppose,  under  those  circumstances,  the  defendant  lands  them,  ano 
leaves  them  on  shore,  would  that  amount  to  a  conversion?  The  argu 
ment  of  the  plaintiff's  counsel  in  this  case  must  go  the  length  of  say 
ing  that  it  would.  Then,  suppose  the  reply  to  be,  that  those  circum- 
stances would  amount  to  a  conversion,  I  ask,  at  what  period  of  time 
did  the  conversion  take  place?  Suppose  the  plaintiff  had  immediately 
followed  his  horses  when  they  were  put  on  shore,  and  resumed  pos- 
session of  them,  would  there  be  a  conversion  of  them  in  that  case? 
I  apprehend,  clearly  not.  It  has  been  argued,  that  the  mere  touching 
and  taking  them  by  the  bridle  would  constitute  a  conversion,  but 
surely  that  cannot  be:  if  the  plaintiff  had  immediately  gone  on  shore 
and  taken  possession  of  them,  there  could  be  no  conversion.  Then 
the  question,  whether  this  were  a  conversion  or  not,  cannot  depend 
on  the  subsequent  conduct  of  the  plaintiff  in  following  the  horses  on 
shore.  Would  any  man  say,  that  if  the  facts  of  this  case  were,  that 
the  plaintiff  and  defendant  had  had  a  controversy  as  to  whether  the 
horses  should  remain  in  the  boat,  and  the  defendant  had  said,  "If 


SECT.  I.]  FOULDES    V.    WILLOUGHBY.  313 

you  will  not  put  them  on  shore,  I  will  do  it  for  you,"  and  in  pursuance 
of  that  threat,  he  had  taken  hold  of  one  of  the  horses  to  go  ashore 
with  it,  an  action  of  trover  could  be  sustained  against  him?  There 
might,  perhaps,  in  such  a  case,  be  ground  for  maintaining  an  action 
of  trespass,  because  the  defendant  may  have  had  no  right  to  meddle 
with  the  horses  at  all:  but  it  is  clear  that  he  did  not  do  so  for  the 
purpose  of  taking  them  away  from  the  plaintiff,  or  of  exercising  any 
right  over  them,  either  for  hunself  or  for  any  other  person.  The  case 
which  has  been  cited  from  Strange's  Reports,  of  Buskell  v.  Miller, 
seems  fully  in  point.  There  the  plaintiff  and  defendant,  who  were 
porters,  had  each  a  stand  on  the  Custom  House  Quaj-.  The  plaintiff 
placed  goods  belonging  to  a  third  party  in  such  a  manner  that  the 
defendant  could  not  get  to  his  chest  without  removing  them,  which 
he  accordingly  did,  and  forgot  to  replace  them,  and  the  goods  were 
subsequently  lost.  Now  suppose  trespass  to  have  been  brought  for 
that  asportation,  the  defendant,  in  order  to  justif}^  the  trespass, 
Vv-ould  plead,  that  he  removed  the  parcels,  as  he  lawfully  might,  for 
the  purpose  of  coming  at  his  own  goods;  and  the  Court  there  said, 
that  whatever  ground  there  might  be  for  an  action  of  trespass,  in  not 
putting  the  package  back  in  its  original  place,  there  was  none  for 
trover,  inasmuch  as  the  object  of  the  party  in  removing  it  was  one 
wholly  collateral  to  any  use  of  the  property,  and  not  at  all  to  disturb 
the  plaintiff's  rights  in  or  dominion  over  it.  Again,  suppose  a  man 
puts  goods  on  board  of  a  boat,  which  the  master  thinks  are  too  hea\^ 
for  it,  and  refuses  to  carry  them,  on  the  ground  that  it  might  be 
dangerous  to  his  vessel  to  do  so,  and  the  o^vTier  of  the  goods  saj^s, 
"  If  you  put  my  goods  on  shore,  I  will  go  with  them,"  and  he  does  so; 
would  that  amount  to  a  conversion  in  the  master  of  the  vessel,  even 
assuming  his  judgment  as  to  the  weight  of  the  goods  to  be  quite  erro- 
neous, and  that  there  really  would  be  no  danger  whatever  in  taking 
them?  In  order  to  constitute  a  conversion,  it  is  necessary  either  that 
the  party  taking  the  goods  should  intend  some  use  to  be  made  of 
them,  by  himself  or  by  those  for  whom  he  acts,  or  that,  owing  to  his 
act,  the  goods  are  destroyed  or  consmned,  to  the  prejudice  of  the 
lawful  owner.  As  an  instance  of  the  latter  branch  of  this  definition, 
suppose,  in  the  present  case,  the  defendant  had  thrown  the  horses 
into  the  water,  whereby  they  were  droAATied,  that  would  have 
amounted  to  an  actual  conversion;  or  as  in  the  case  cited  in  the  course 
of  the  argument,  of  a  person  throwing  a  piece  of  paper  into  the  water; 
for,  in  these  cases,  the  chattel  is  changed  in  quality,  or  destroyed 
altogether.  But  it  has  never  yet  been  held,  that  the  single  act  of 
removal  of  a  chattel,  independent  of  any  claim  over  it,  either  in 
favour  of  the  party  himself  or  any  one  else,  amounts  to  a  conversion 
of  the  chattel.  In  the  present  case,  therefore,  the  simple  removal  of 
these  horses  by  the  defendant,  for  a  purpose  wholly  unconnected  with 
any  the  least  denial  of  the  right  of  the  plaintiff  to  the  possession  and 


314  FOULDES    V.    WILLOUGHBY,  [CHAP.  L 

enjojTiient  of  them,  is  no  conversion  of  the  horses,  and  eonsequenth 
the  rule  for  a  new  trial  ought  to  be  made  absolute. 

"With  respect  to  the  amount  of  damages,  it  was  altogether  a 
question  for  the  jury.  I  am  not  at  all  prepared  to  say,  that  if  the  jury 
were  satisfied  that  there  had  been  a  conversion  in  this  case,  they 
would  be  doing  WTong  in  giving  damages  to  the  full  value  of  the 
horses.  I  do  not  at  all  rest  my  judgment  on  that  point,  but  put  it 
aside  entirely.  If  the  Judge  had  told  the  jury  that  there  was  evi- 
dence in  the  case  from  whence  they  might  infer  that  a  conversion 
of  these  horses  had  taken  place  at  some  time,  it  would  have  been 
different;  but  bis  telling  them  that  the  simple  act  of  putting  them  on 
shore  amounted  to  a  conversion,  I  think  was  a  misdirection,  on 
which  the  defendant  is  entitled  to  a  new  trial. 

Alderson,  B.  —  I  am  of  the  same  opinion.  As  to  the  last  point, 
it  would  be  a  strange  thing  to  disturb  the  verdict  on  the  gi'ound  that 
the  jury  had  given  as  damages  the  full  value  of  these  horses;  for  it 
appears  that  they  were  ultimately  sold,  and  the  plaintiff  never 
regained  possession  of  them.  If,  therefore,  the  original  act  of  taking 
the  horses  really  amounted  to  a  conversion  of  them,  it  would  be  a 
strong  proposition  for  us  to  say,  that  the  plaintiff  was  not  entitled  to 
recover  their  full  value,  as  damages  for  the  wrongful  act  done.  But 
the  mere  circmnstance  which  the  learned  Judge  in  this  case  put  to 
the  jury,  as  constituting  the  conversion,  does  not  necessarily  amount 
to  one.  Any  asportation  of  a  chattel  for  the  use  of  the  defendant, 
or  a  third  person,  amounts  to  a  conversion;  for  this  simple  reason, 
that  it  is  an  act  inconsistent  with  the  general  right  of  dominion  which 
the  OT^aier  of  the  chattel  has  in  it,  who  is  entitled  to  the  use  of  it  at  all 
times  and  in  all  places.  When,  therefore,  a  man  takes  that  chattel, 
either  for  the  use  of  himself  or  of  another,  it  is  a  conversion.  So,  if  a 
man  has  possession  of  my  chattel,  and  refuses  to  deliver  it  up,  this  is 
an  assertion  of  a  right  inconsistent  with  my  general  dominion  ova' 
it,  and  the  use  which  at  all  times,  and  in  all  places,  I  am  entitled  tt. 
make  of  it;  and  consequently  amounts  to  an  act  of  conversion.  Sc 
the  destruction  of  the  chattel  is  an  act  of  conversion,  for  its  effect  if 
to  deprive  me  of  it  altogether.  But  the  question  here  is,  where  a  mai 
does  an  act,  the  effect  of  which  is  not  for  a  moment  to  interfere  witL 
my  dominion  over  the  chattel,  but,  on  the  contrary,  recognizing 
throughout  my  title  to  it,  can  such  an  act  as  that  be  said  to  amount 
to  a  conversion?  I  think  it  cannot.  Why  did  this  defendant  turn  the 
horses  out  of  his  boat?  Because  he  recognised  them  as  the  property 
of  the  plaintiff.  He  may  have  been  a~wrong-doer  in  putting  them 
ashore;  but  how  is  that  inconsistent  with  the  general  right  which  the 
plaintiff  has  to  the  use  of  the  horses?  It  clearly  is  not;  it  is  a  wrong- 
ful act  done,  but  only  like  any  common  act  of  trespass,  to  goods  with 
which  the  partj^  has  no  right  to  meddle.  Scratching  the  panel  of  a 
carriage  would  be  a  trespass;  but  it  would  be  a  monstrous  thmg  to 


SECT.  I.]  FOULDES    V.    WILLOUGHBY.  315 

say  that  it  would  be  a  ground  for  an  action  of  trover;  and  yet  to  thai 
extent  must  the  plaintiff's  counsel  go,  if  their^argument  in  this  case 
be  sound.  But  such  is  not  the  law;  and  the  true  principle  is  that 
stated  by  Chambre  and  Holroyd,  Js.,  when  at  the  bar,  in  their 
argument  in  the  case  of  Shipivick  v.  Blanchard,  6  T,  R.  299,  that  "  In 
order  to  maintain  trover,  the  goods  must  be  taken  or  detained,  with 
intent  to  convert  them  to  the  taker's  own  use,  or  to  the  use  of  those 
for  whom  he  is  acting."  This  definition,  indeed,  requires  an  addition 
to  be  made  to  it,  namely,  that  the  destruction  of  the  goods  will  also 
amount  to  a  conversion.  For  these  reasons,  I  think,  in  the  case 
before  us,  the  question  ought  to  have  been  left  to  the  jury,  to  say, 
whether  the  act  done  by  the  defendant,  of  seizing  these  horses  and 
putting  them  on  shore,  was  done  with  the  intention  of  converting 
them  to  his  own  use,  i.  e.  with  the  intention  of  impugning,  even  for  a 
moment,  the  plaintiff's  general  right  of  dominion  over  them.  If  so, 
it  would  be  a  conversion;  otherwise  not. 

Note.  —  In  Shea  v.  Milford,  145  Mass.  525,  the  court  said 
(p.  527):  *'The  property  of  the  plaintiff  alleged  to  have  been  con- 
verted by  the  defendants  was  on  land  belonging  to  and  occupied  by 
the  defendant  town.  The  town  requested  the  plaintiff  to  remove  the 
property  to  another  place  on  the  same  parcel  of  land,  and  the  plaintiff 
refused  to  do  so,  whereupon  the  defendants  removed  it  to  the  place 
assigned  by  the  town.  The  instruction,  that,  if  the  plaintiff  unrea- 
sonably neglected  to  remove  the  property,  and  the  defendants 
removed  it  to  another  part  of  the  lot,  doing  no  unnecessary  damage, 
the  plaintiff  could  not  recover,  was  sufficiently  favorable  to  the  plain- 
tiff, even  if  he  occupied  under  a  license  which  had  not  been  revoked. 
The  evidence  negatived  a  conversion  of  the  property  by  the  defend- 
ants, and  showed  that  they  claimed  no  title  to  it,  assumed  no  domin- 
ion over  it,  and  did  nothing  in  derogation  of  the  plaintiff's  title  to  it; 
and  that  all  that  was  claimed  by  the  defendants  was  the  right  t^' 
remove  the  goods  from  one  place  to  another  on  their  own  land.  All 
that  was  done  was  in  assertion  of  their  right  in  the  land,  and  in  rec- 
ognition of  the  plaintiff's  right  of  property  in  the  chattels.  If  the 
plaintiff  had  the  right  to  occupy  the  land  which  he  claimed,  the  act 
of  the  defendants  was  wrongful,  and  they  would  be  liable  to  the 
plaintiff  for  damages  for  breach  of  contract,  or  for  the  trespass,  but 
not  for  the  value  of  property  converted  to  their  own  use.  Farnsworth 
V.  Lowery,  134  Mass.  512.  Fouldes  v.  Willoughhy,  8  M.  &  W.  540. 
Heald  v.  Carey,  11  C.  B.  977.  It  is  immaterial  whether  the  plaintiff 
had  an  unrevoked  license  to  occupy  the  land,  and  we  express  no 
opinion  upon  that  question." 


316  THURSTON    V.    BLANCHARD.  [CHAP.  L 

B.  Obtaining  the  Chattel  from  the  Plaintiff  hy  Fraud. 


THUESTON  V.  BLANCHARD. 

22  Pick.  (Mass.)  18.     1839. 

Trover  to  recover  the  value  of  certain  goods  alleged  to  have  been 
obtained  by  the  defendant,  from  the  plaintiffs,  by  means  of  false  and 
fraudulent  pretenses. 

Shaw,  C.J.  We  are  now  to  take  it  as  proved  in  point  of  fact,  to  the 
satisfaction  of  the  jury,  that  the  goods,  for  which  this  action  of  trover 
is  brought,  were  obtained  from  the  plaintiffs  by  a  sale,  but  that  this 
sale  was  influenced  and  effected  by  the  false  and  fraudulent  repre- 
sentations of  the  defendant.  Such  being  the  case,  we  think  the  plain- 
tiffs were  entitled  to  maintain  their  action,  without  a  previous 
demand.  Such  demand,  and  a  refusal  to  deliver,  are  evidence  of  con- 
version when  the  possession  of  the  defendant  is  not  tortious;  but 
when  the  goods  have  been  tortiously  obtained,  the  fact  is  sufficient 
evidence  of  conversion.  Such  a  sale,  obtained  under  false  and  frau- 
dulent representations,  may  be  avoided  by  the  vendor,  and  he  may 
insist  that  no  title  passed  to  the  vendee,  or  any  person  taking  under 
him,  other  than  a  bona  fide  purchaser  for  value  and  without  notice, 
and  in  such  case  the  seller  may  maintain  replevin  or  trover  for  his 
goods.  Buffinton  v.  Gerrish,  15  Mass.  R.  156. 

Note.  —  Woodworth  v.  Kissam,  15  Johns.  (N.Y.)  186.  Where  a 
creditor  b}^  fraud  obtains  the  goods  of  his  debtor,  he  cannot  apply 
them  to  the  satisfaction  of  his  debt,  and  the  debtor  may  maintain 
trover  for  them. 

If  B,  by  fraud,  has  secured  from  A  the  title  to  A's  chattel,  and 
sells  the  chattel  to  C,  a  bona  fide  purchaser,  A  has  no  remedy  against 
C.   Williamson  v.  Russell,  39  Conn.  406. 

If  B,  by  fraud,  has  secured  from  A  the  title  to  A's  chattel,  an  officer 
who  seizes  the  goods  as  the  property  of  B  is  not  a  converter.  Thomp- 
son V.  Rose,  16  Conn.  71,  83.  The  assignee  of  B,  who  did  not  pay 
value  but  had  no  notice  of  the  fraud,  should  not  be  liable  as  a  con- 
verter by  reason  of  taking  possession  of  the  chattel.  Goodwin  v. 
Wertheimer,  99  N.Y.  149.  Cf.  Farley  v.  Lincoln,  51  N.H.  577. 


SECr.  I.]  ENGLAND    V.    COWLEY.  317 


Leaving  the  Plaintiff  in  Possession,  hut  Restraining 
his  Use  of  the  Chattel. 


ENGLAND  v.   COWLEY. 

L.  R.  8  Exch.  126.     1S73. 

Trover  for  household  furniture. 

Plea:  not  guilty  by  statute  (11  Geo.  2,  c.  19,  s.  21). 

Issue. 

The  plaintiff  was  the  holder  of  a  bill  of  sale  over  the  household 
furniture  of  Miss  Morley,  the  tenant  to  the  defendant  of  a  house 
in  River  Terrace,  Chelsea.  The  bill  of  sale  contained  the  usual 
clauses  enabling  the  plaintiff  to  take  possession  of,  and  remove  and 
sell,  the  furniture  in  case  of  default  upon  Miss  JNIorley's  part  in  pay- 
ment of  the  sum  advanced.  She  having  made  default,  the  plaintiff 
put  a  man  in  possession  early  in  August,  1872,  and  upon  the  11th  of 
August  sent  two  of  his  men  with  vans  to  remove  the  furniture  from 
the  house.  It  was  then  after  sunset.  The  men  were  met  at  the  house 
b}^  the  defendant,  the  landlord,  who  alleged  that  half  a  year's  rent 
was  due  and  in  arrear,  and  stated  that  he  did  not  intend  to  allow  the 
goods  to  be  removed,  as  he  meant  to  distrain  on  the  day  following. 
One  cf  the  men  returned,  and  informed  the  plaintiff  of  what  had 
passed.  The  plaintiff  thereupon  went  to  the  house  himself,  and  was 
told  by  the  defendant,  who  was  in  the  passage,  that  he  would  not 
suffer  any  of  the  goods  to  be  taken  away  until  his  rent  was  paid. 
The  defendant  had  also  engaged  a  pohceman,  whom  he  stationed 
outside,  to  prevent  the  removal  of  the  goods.  The  plaintiff  there- 
upon gave  up  the  attempted  removal  and  went  away,  leaving  a  man 
still  in  possession.  The  defendant  did  not  himself  actually  take  pos- 
session of  or  remove  any  of  the  goods  upon  this  occasion.  His  object 
was  to  prevent  the  plaintiff's  removing  them  in  order  to  distrain  the 
next  day  at  a  legal  hour. 

The  cause  was  tried  before  Bramwell,  B.,  at  the  Surrey  summer 
assizes,  1872.  In  summing  up  the  learned  judge  directed  the  jury 
in  the  following  terms:  "If  you  are  of  opinion  that  the  defendant  did 
not  deprive  the  plaintiff  of  his  goods,  did  not  take  possession  of,  nor 
assume  dominion  over,  them,  but  merely  prevented  the  plaintiff 
from  removing  them  from  one  place  to  another,  allowing  him  to  re- 
main in  possession  of  them  if  lie  liked,  then  there  is  no  cause  of  ac- 
tion." The  jury  answered  this  question  in  favour  of  the  defendant, 
and  a  verdict  was  entered  for  him  accordingly,  with  leave  to  enter 
a  verdict  for  the  plaintiff  for  40L,  the  value  of  the  goods,  if  the  Court 
should  be  of  opinion  that  the  learned  judge  ought  to  have  directed  ? 


318  ENGLAND    V.    COWXEY.  [cnA.^P.  I. 

verdict  for  the  plaintiff.  A  rule  was  obtained  in  Michaelmas  Term 
accordingly,  on  the  ground  that  the  learned  judge  ought  to  have 
directed  the  jury  that  the  conversion  was  proved. 

Bramwell,  B.  I  am  of  the  same  opinion.  I  think  no  action  is 
maintainable,  because  the  defendant  did  no  act,  but  only  threatened 
that,  in  a  certain  event,  he  would  do  something.  The  plaintiff  should 
either  have  proceeded  with  the  removal  of  the  goods,  or  at  least 
have  commenced  to  remove  them,  leaving  the  defendant  to  stop 
him  at  his  peril,  when  there  might  have  been  a  cause  of  action  of 
some  sort.  But  further,  even  if  the  defendant  had  prevented  the 
removal  of  the  goods  by  physical  force,  I  do  not  think  trover  would 
have  been  maintainable.  The  substance  of  that  action  is  the  same 
as  before  the  Common  Law  Procedure  Act,  1852,  and  although  in 
the  form  of  declaration  there  given  in  sch.  B.  the  words  used  are, 
"  converted  to  his  own  use,  or  wrongfully  deprived  the  plaintiff  of 
the  use  and  possession  of  the  plaintiff's  goods,"  the  gist  of  the  action 
is  the  conversion,  as  for  example,  b}''  consuming  the  goods  or  by  re- 
fusing the  true  owner  possession,  the  wrong-doer  having  himself  at 
the  time  a  physical  control  over  the  goods.  Now  here  the  defendant 
did  not  "  convert"  the  goods  to  his  own  use,  either  by  sale  or  in  any 
other  way.  Nor  did  he  deprive  the  plaintiff  of  them.  All  he  did  was 
to  prevent,  or  threaten  to  prevent,  the  plaintiff  from  using  them  in  a 
particular  way.  "You  shall  not  remove  them,"  he  said,  but  the 
plaintiff  still  might  do  as  he  pleased  with  them  in  the  house.  As- 
sume that  there  was  actual  prevention,  still  I  think  this  action  can- 
not be  maintained.  Take  some  analogous  cases,  by  way  of  illustra- 
tion. A  man  is  going  to  fight  a  duel,  and  goes  to  a  drawer  to  get  one 
of  his  pistols.  I  say  to  him,  "You  shall  not  take  that  pistol  of  yours 
out  of  the  drawer,"  and  hinder  his  doing  so.  Is  that  a  conversion  of 
the  pistol  by  me  to  mj^  own  use?  Certainh'  not.  Or,  again,  I  meet  a 
man  on  horseback  going  in  a  particular  direction,  and  say  to  him, 
"You  shall  not  go  that  way,  you  must  turn  back";  and  make  him 
comply.  Who  could  say  that  I  had  been  guilty  of  a  conversion  of 
the  horse?  Or  I  might  prevent  a  man  from  pawning  his  watch,  but 
no  one  would  call  that  a  conversion  of  the  watch  by  me.  And  really 
this  case  is  the  same  with  these.  Illustrations  of  my  meaning  might 
be  easily  multiplied.  The  truth  is  that,  in  order  to  maintain  trover, 
a  plaintiff  who  is  left  in  possession  of  the  goods  must  prove  that  his 
dominion  over  his  property  has  been  interfered  with,  not  in  some 
particular  way,  but  altogether;  that  he  has  been  entirely  deprived  of 
the  use  of  it.  It  is  not  enough  that  a  man  should  say  that  something 
snail  not  be  done  by  the  plaintiff;  he  must  say  that  nothing  shall. 
Now  here  there  was  no  interference  with  the  plaintiff's  rights  except 
the  statement  by  the  defendant  that  he  would  prevent  the  goods 
from  being  removed.  This  is  not  sufficient  to  furnish  a  basis  for  the 
TDresent  action.   For  it  must  be  remembered  that  if  the  defendant 


£E(71\  I.l  ENGLAND   V,    COWLEY.  319 

is  liable  at  all,  it  is  for  the  value  of  the  goods.  But  how  unjust  that 
would  be!  The  plaintiff's  man  was  left  in  possession.  Miss  Morley 
could  not  legally  take  away  the  goods.  If  she  did,  the  plaintiff  could 
maintain  an  action  against  her  for  their  wrongful  removal.  Yet  he  is 
also  to  be  able  to  recover  their  full  value  against  the  defendant. 
Moreover,  I  camiot  but  think  that  the  jury  really  negatived  all  idea 
of  conversion.  ''If  you  are  of  opinion,"  they  were  told,  ''that  the 
defendant  did  not  deprive  the  plaintiff  of  his  goods,  did  not  take 
possession  of,  nor  assume  dominion  over  them,  but  merely  prevented 
the  plaintiff  from  removing  them  from  one  place  to  another,  allow- 
ing the  plaintiff  to  remain  in  possession  of  them  if  he  liked,"  then 
there  is  no  cause  of  action.  The  j  ury  answered  this  question  in  favour 
of  the  defendant.  There  had,  therefore,  been  no  general  assertion 
of  right  to  the  exclusion  of  the  plaintiff. 

Martin,  B.  I  think  this  rule  should  be  made  absolute.  The  real 
question  is  whether  the  defendant  "converted  to  his  own  use,  or 
wrongfully  deprived  "  the  plaintiff  of  his  goods.  Now  it  appears  that 
the  plaintiff  had  a  bill  of  sale  over  the  goods  of  one  Morley,  whose 
landlord  the  defendant  was.  After  sunset  on  the  11th  of  August, 
1872,  when  a  distress  was  impossible,  the  plaintiff,  who  had  previously 
put  a  man  in  possession,  went  himself  to  the  house,  with  the  view 
of  removing  the  goods,  there  having  been  a  default  under  the  bill  of 
sale.  The  defendant  could  not  distrain  that  evening,  but  in  order 
to  have  the  opportunity  of  distraining  he  told  the  plaintiff  that  he 
would  prevent  the  goods  being  removed,  and  he  took  steps  accord- 
ingly, placing  a  policeman  to  watch  the  house  and  to  prevent  the 
removal.  I  think  this  was  a  conversion.  The  plaintiff  was  not  bound 
to  resist  the  defendant,  and  to  remove  his  goods  at  the  peril  of  com- 
ing into  colhsion  with  him.  He  was  deprived,  by  the  plaintiff's  act, 
of  the  power  over  his  goods  which  he  was  entitled  to  exercise.  That 
is,  in  my  opinion,  enough  to  enable  him  to  maintain  this  action.  li 
the  defendant  had  been  in  the  room  where  the  goods  were,  and  had 
said  to  the  plaintiff,  "These  goods  shall  not  be  removed,"  surely  that 
would  have  been  a  "wrongful  deprivation."  The  defendant  was,  in 
fact,  not  in  the  room  but  in  the  passage,  with  equal  means,  however, 
of  stopping  the  removal.  I  can  see  no  difference  between  the  two 
cases. 

[The  rule  was  discharged  as  Kelly,  C.B.,  and  Pollock,  B.,  con- 
curred with  Bramwell,  B.] 

Note.  — In  Boohier  v.  Boobier,  39  Me.  406,  the  court  said  (p.  409) : 
"  The  proposition,  that  the  use  of  force  by  one  not  having  possession 
of  goods,  to  prevent  the  true  owner  from  obtaining  them,  amounts 
to  a  conversion  of  those  goods,  is  not  sustained  as  sound  in  principle." 


320  BRISTOL    V.    BURT.  [CHAP.  I, 

BRISTOL  V.  BURT. 

7  Johns.  (N.Y.)  254.     1810. 

This  was  an  action  of  trover,  brought  to  recover  the  value  of  95 
barrels  of  potashes.  The  cause  was  tried  at  the  Onondaga  circuit, 
the  7th  June,  1810,  before  the  Chief  Justice. 

The  defendant  was,  in  1808,  and  still  is,  the  collector  of  the  port  of 
Oswego,  on  the  south  side  of  Lake  Ontario.  In  May,  1808,  the  de- 
fendant was  applied  to,  to  know  whether  he  would  grant  clearances 
for  ashes  for  the  port  of  Sackett's  Harbour,  which  is  the  next  adjoin- 
ing port  in  the  county  of  Jefferson,  and  on  the  south  side  of  the  lake, 
and  adjacent  to  the  province  of  Canada.  The  defendant  answered 
that  he  did  and  should  continue  to  grant  clearances;  and  the  defend- 
ant was  informed  of  the  intention  of  the  plaintiff  to  bring  ashes  to 
Oswego,  for  the  puipose  of  sending  them  to  Sackett's  Harbour.  About 
the  first  July,  the  plaintiff  sent  95  barrels  of  potashes  to  Oswego, 
which  were  put  into  the  store  of  a  Mr.  Wentworth,  who  gave  the 
plaintiff  a  receipt  for  them.  The  plaintiff  apphed  to  the  defendant 
lor  a  clearance,  in  order  to  transport  the  ashes  to  Sackett's  Harbour; 
but  the  defendant  refused  to  grant  it,  alleging  as  a  reason  for  his 
refusal,  that  though  he  did  not  suspect  the  plaintiff  intended  to  send 
the  ashes  to  a  British  port,  yet  he  believed  that  the  collector  at  Sack- 
ett's Harbour  would  not  do  his  duty,  and  that  the  ashes  would  be 
sent  from  thence  to  a  British  port.  The  defendant  at  the  same  time 
promised  the  plaintiff,  that  if  he  did  not  receive  instructions  to  the 
contraiy  from  the  secretary  of  the  treasury,  within  a  fortnight,  he 
would  give  a  clearance  to  the  plaintiff's  ashes.  After  the  expiration 
of  that  time,  the  defendant  still  refused  to  grant  the  clearance, 
though  he  admitted  that  he  had  received  no  new  instructions  from 
the  secretary  of  the  treasur^^  nor  had  he  received  any  instructions 
forbidding  such  clearances.  He  assigned  no  other  reason  for  his  re- 
fusal than  his  suspicion  that  the  collector  at  Sackett's  Harbour  would 
not  do  his  duty,  and  persisted  in  refusing  a  clearance,  though  the 
plaintiff  offered  to  give  bonds  that  the  ashes  should  be  dehvered  at 
Sackett's  Harbour.  The  plaintiff  then  expressed  his  desire  to  take 
the  ashes  up  the  river;  but  the  defendant  declared  that  the  plaintiff' 
should  not  take  them  from  Wentworth's  store,  unless  he  gave  bonds 
for  double  the  value  of  the  property,  to  carry  the  ashes  to  Rome,  in 
the  county  of  Oneida,  and  leave  them  there,  while  the  embargo  con- 
tinued; that  the  property  was  under  his  jurisdiction  and  charge; 
that  he  had  a  control  over  all  the  stores  and  wharves  where  ashes 
were  placed,  and  had  employed  armed  men;  and  that  he  had  the 
right  to  prevent  their  removal,  and  would  exercise  it.  Two  armed 
men  were  stationed  near  Wentworth's  store  during  two  nights,  and 
an  armed  sentinel  was  constantly  on  duty,  night  and  day,  at  the 


SECT.  I.]  BRISTOL    V.    BURT.  321 

public  store  of  the  collector,  within  ten  rods  of  Wentworth's  store, 
and  in  view  of  it,  for  the  purpose  of  observing  boats,  and  preventing 
the  removal  of  property.  The  defendant  avowed  his  determination 
not  to  permit  any  ashes  to  be  removed  from  any  of  the  stores  in 
Oswego.  The  defendant  demanded  the  ashes  in  question  from 
Wentworth,  who  refused  to  deliver  them;  but  in  order  to  prevent  the 
defendant  from  proceeding  to  extremities,  and  to  satisfy  him,  Went- 
worth entered  into  an  agreement  with  the  defendant,  not  to  deliver 
any  property'  from  his  store,  without  the  permission  of  the  defendant. 

In  the  autumn  of  1808,  the  defendant  gave  a  general  permission 
to  rem^ove  any  ashes  from  Oswego  up  the  river,  and  13  barrels  of  the 
potash  of  the  plaintiff  were  delivered  by  Wentworth  to  his  order. 

On  the  13th  February,  1809,  the  defendant  gave  a  written  permit 
to  carry  the  remaining  82  barrels  of  potashes  from  Oswego  to  Rome, 
in  the  'county  of  Oneida,  requiring  of  the  person  to  whom  they  were 
delivered  by  order  of  the  plaintiff,  a  written  report  of  the  ashes,  and 
an  oath  that  the  statement  was  true,  and  that  he  did  not  intend  to 
violate  the  law. 

It  was  proved,  that  w^hen  the  plaintiff  applied  to  the  defendant 
for  a  clearance  to  Sackett's  Harbour,  potashes  were  w^orth  at  that 
place  180  dollars  per  ton,  and  that  the  expense  of  transportation  was 
4  dollars  per  ton.  That  the  price  of  potashes  on  the  21st  July,  1808, 
in  the  city  of  New  York,  was  173  dollars  per  ton,  but  would  not  sell 
at  Salina,  in  the  county  of  Onondaga,  for  more  than  150  dollars. 
That  when  the  plaintiff  received  the  ashes,  the  price  of  them,  in  the 
city  of  Albany,  was  137  dollars  and  50  cents,  and  the  expense  of 
transportation  from  25  to  30  dollars  per  ton. 

The  Chief  Justice  charged  the  jury,  that  in  his  opinion,  there  was 
sufficient  evidence  of  a  conversion  by  the  defendant,  and  that  the 
plaintiff  was  entitled  to  recover  for  the  difference  in  the  value  of  the 
ashes  at  the  time  when  he  demanded  a  clearance,  and  at  the  time 
he  received  them.  And  the  jury  found  a  verdict  for  the  plamtift, 
for  1472  dollars  and  20  cents. 

-   A  case  was  made  for  the  opinion  of  the  court,  which  it  was  agreed 
might  be  turned  into  a  special  verdict. 

Per  Curiam.  The  only  point  made  in  this  case  is,  whether  there 
was  sufficient  evidence  of  a  conversion  to  justify  the  verdict. " 

There  were  declarations  and  acts  of  the  defendant  united  to  form  a 
control  over  the  plaintiff's  property.  The  very  denial  of  goods  to  him 
that  has  a  right  to  demand  them,  says  Lord  Holt,  in  Baldwin  v.  Cole, 
6  Mod.  212,  is  a  conversion;  for  what  is  a  conversion  but  an  assuming 
upon  one's  self  the  property  and  right  of  disposing  of  another's 
goods?  And  he  that  takes  upon  himself  to  detain  another  man's 
goods  from  him  without  a  cause,  takes  upon  himself  the  right  of  dis- 
posing of  them.  The  bare  denial  to  deliver  is  not  always  a  conver- 
sion, as  in  Thimblethor-pe' s  case  (cited  in  2  Bulst.  310,  314),  where  a 


322  VILAS    V.    MASON.  [CHAP.  I. 

piece  of  timber  was  left  upon  the  land  of  the  defendant  by  the  lessee 
at  the  expiration  of  his  term,  and  he  was  requested  to  deliver  it  and 
refused,  but  suffered  the  timber  to  lie  without  intermeddling  with  it. 
The  reason  why  this  was  held  not  to  be  a  conversion  was,  that  there 
was  no  act  done  or  dominion  exercised;  but  in  the  present  case  there 
were  the  highest  and  most  unequivocal  acts  of  dominion  and  control 
over  the  property;  not  only  by  claiming  jurisdiction  over  it,  but  in 
placing  armed  men  near  it,  to  prevent  its  removal.  This  fact  is,  of 
itself,  a  conversion.  It  is  intermeddling  with  the  property  in  the 
most  decisive  manner,  and  detaining  it  for  months  in  the  storehouse. 
It  was  therefore  bringing  a  charge  upon  the  plaintiff;  and  this,  says 
Mr.  Justice  Buller,  in  Syeds  v.  Hay,  4  Term  Rep.  260,  amounts  to 
a  conversion.  Neither  the  case  of  M'Combie  v.  Danes,  6  East,  538, 
nor  the  anonymous  case  in  12  Mod.  344,  were  so  strong  as  this,  and 
yet  the  conversion  was  maintained.  It  was  assuming  the  dominion 
of  the  property  which  was  made  by  Lord  Ellenborough  the  test 
f)f  the  conversion,  though  the  property  in  that  case  lay  not  in  the 
defendant's  but  in  the  king's  warehouse.  The  definition  of  a  con- 
version in  trover,  as  given  by  Mr.  Gwillim,  the  editor  of  Bacon,  and 
now  a  judge  in  India,  applies  precisely  to  this  case.  (6  Bac.  Abr. 
577.)  "The  action  being  founded  upon  a  conjunct  right  of  prop- 
erty and  possession,  any  act  of  the  defendant,"  says  he,  "which 
negatives,  or  is  inconsistent  with  such  right,  amounts  in  law  to  a 
conversion.  It  is  not  necessary  to  a  conversion  that  there  should  be  a 
manual  taking  of  the  thing  in  question  by  the  defendant;  it  is  not 
necessary  that  it  should  be  shown  that  he  has  applied  it  to  his  own 
use.  Does  he  exercise  a  dominion  over  it  in  exclusion,  or  in  defiance 
of  the  plaintiff's  right?  If  he  does,  that  is,  in  law,  a  conversion,  be  it 
for  his  own  or  another  person's  use." 

We  are,  therefore,  of  opinion,  that  the  motion  to  set  aside  the  ver- 
dict must  be  denied.  Motion  denied. 

Note.  —  See  Dodge  v.  Meyer,  61  Cal.  405,  420,  and  cases  there 
cited,  and  Hall  v.  Amos,  5  T.B.  Mon.  (Ky.)  89. 


VILAS  V.  MASON. 

25  Wis.  310.    1870. 

A  TENANT  of  a  hotel  was  forbidden  by  the  landlord,  ten  daj's  be- 
fore the  lease  expired,  to  remove  certain  articles  which  belonged  to 
the  tenant.  The  tenant  thereafter  surrendered  up  the  possession  of 
the  hotel  and  left  the  articles  in  it. 

Paine,  J.  The  question  is,  whether  enough  is  stated  to  show  a 
conversion  by  the  plaintiff  of  the  articles  mentioned  in  the  defend- 


SECT.  I.]  VILAS    V.    MASON.  323 

ant's  counterclaim.  The  argument  on  the  motion  for  a  rehearing 
seems  to  assume,  that  if,  at  the  expiration  of  the  lease,  when  the 
lessee  was  about  to  exercise  his  right  of  removing  such  property  as 
belonged  to  him,  the  lessor  should  claim  certain  articles  attached 
to  the  premises  as  his  own,  and  forbid  the  tenant  to  remove  them,  it 
would  be  a  conversion.  This  there  would  seem  to  be  no  room  to 
doubt.  It  would  clearly  be  such  a  wrongful  assumption  of  control 
over  the  propertj^,  and  such  an  interference  with  the  owTier's  right, 
as  would  constitute  a  conversion.  The  only  doubt  that  arises  upon 
the  point  is,  whether  the  same  acts,  occurring  before  the  expiration 
of  the  lease,  and  while  the  tenant  remains  in  the  undisturbed  pos- 
session of  the  premises,  not  attempting  to  exercise  his  right  of  re- 
moval, would  also  amount  to  a  conversion.  It  maj^  well  be,  that  in 
general  the  assertion  by  one  person  of  a  claim  to  property  in  the  un- 
disturbed possession  of  another,  even  though  accompanied  by  a  for- 
biddance  of  its  use,  would  not  be  a  conversion.  But,  without  at- 
tempting to  settle  any  general  rule  upon  the  subject,  we  are  of  the 
opinion,  that  w^here  a  dispute  arises  between  a  landlord  and  tenant 
in  respect  to  the  ownership  of  articles,  which,  if  they  belong  to  the 
tenant  wdth  a  right  of  removal,  are  personal  property,  but  which,  if 
they  belong  to  the  landlord,  are  fixtures  and  a  part  of  the  realty, 
and  the  landlord,  just  before  the  expiration  of  the  lease,  but  contem- 
plating that  result,  and  with  a  view  to  affect  the  action  of  the  ten- 
ant at  such  approaching  expiration,  claims  title  to  such  articles  and 
foi'bids  the  tenant  to  remove  them,  and  threatens  him  with  an  in- 
junction if  he  attempts  it,  the  tenant  may,  on  surrendering  the  prem- 
ises, leave  the  articles,  and  treat  the  acts  of  the  landlord  as  a  conver- 
sion. The  fact  that  these  acts  occurred  a  few  days  before  the  actual 
surrender  of  the  premises  is  not  material,  so  long  as  they  were  so 
near  that  event,  and  were  intended  and  understood  by  both  parties 
to  have  direct  reference  to  it.  A  landlord  claiming  such  fixtures  may 
obtain  an  injunction  against  an  outgoing  tenant  who  threatens  to 
remove  them.  Gibbons  on  the  Law  of  Fixtures,  p.  70  (11  Law  Li- 
brary). And  to  make  such  remedy  effectual,  he  would  have  to  obtain 
it  before  the  tenant  actually  removed  the  fixtures.  It  is  one  of  the 
instances  where  equity  would  interfere  to  prevent  the  threatened 
wrong.  Such  being  the  case,  the  landlord  being  in  a  position,  by 
reason  of  the  peculiar  character  of  the  property,  to  enforce  his 
threat,  if  he  will  take  the  responsibility  of  forbidding  the  tenant  to 
remove  such  articles  at  the  expiration  of  a  lease  then  about  to  expire, 
under  threat  of  an  injunction,  this  should  fairly  be  regarded  as  such 
an  assumption  of  control  over  the  property,  and  such  an  interfer- 
ference  with  the  tenant's  right,  as  to  amount  to  a  conversion. 


324  BA-LDW^N    V.    COLE.  FcHAP.  I. 


SECTION  2. 
WITHHOLDING  THE  CHATTEL  FROM  THE  PLAINTIFF. 


BALDWIN   V.   COLE. 

6  Mod.  212.     1704. 

Trover.  The  case,  upon  evidence,  was  this:  A  carpenter  sent  his 
servant  to  work  for  hire  to  the  queen's  yard;  and  having  been  there 
some  time,  when  he  would  go  no  more,  the  survej^or  of  the  work 
would  not  let  him  have  his  tools,  pretending  a  usage  to  detain  tools 
to  enforce  workmen  to  continue  until  the  queen's  work  was  done. 
A  dem^and  and  refusal  was  proved  at  one  time,  and  a  tender  and  re- 
fusal after. 

Holt,  Chief  Justice.  The  very  denial  of  goods  to  him  that  has  a 
right  to  demand  them  is  an  actual  conversion,  and  not  only  evidence 
of  it,  as  has  been  holden;  for  what  is  a  conversion,  but  an  assuming 
upon  one's  self  the  property  and  right  of  disposing  another's  goods, 
and  he  that  takes  upon  himself  to  detain  another  man's  goods  from 
him  without  cause,  takes  upon  himself  the  right  of  disposing  of 
them :  so  the  taking  and  carrying  away  another  man's  goods  is  a 
conversion:  so  if  one  come  into  my  close,  and  take  my  horse  and 
ride  him,  there  it  is  conversion:  and  here  if  the  plaintiff  had  received 
them  upon  the  tender,  notwithstanding  the  action  would  have  lain 
upon  the  former  conversion,  and  the  having  of  the  goods  after  would 
go  only  in  mitigation  of  the  damages:  and  he  made  no  account  of  thf 
pretended  usage,  but  compared  it  to  the  doctrine  among  the  army 
that  if  a  man  came  into  the  service,  and  brought  his  own  horse 
that  the  property  thereof  was  immediately  altered,  and  vested  in  the 
queen;  which  he  had  already  condemned. 

Note.  —  The  cases  in  support  of  the  principal  case  are  very 
numerous. 

Clark  V.  Hale,  34  Conn.  398.  The  chattel  was  in  the  defendant's 
possession,  but  was  at  a  distance  from  the  place  where  plaintiff  de- 
manded it,  and  could  not  have  been  at  once  dehvered.  The  defend- 
ant absolutely  refused  to  deliver  the  chattel,  and  was  held  to  have 
converted  it. 

Bassett  v.  Bassett,  112  Mass.  99.  A  refusal  to  perform  a  promise 
to  repay  m.oney  lent  is  not  a  conversion. 


SECT,  II.]  ALEXANDER    V.    SOUTHEY.  325 

GREEN  V.  DUNN. 

3  Camp.  215.     1811. 

Trover  for  timber,  which  defendant  found  on  his  premises,  and 
which  had  been  deposited  there  by  the  permission  of  the  servant  of 
the  former  occupier. 

The  plaintiff  to  whom  the  timber  belonged  having  demanded  it 
of  the  defendant,  the  latter  said :  If  you  will  bring  any  one  to  prove  it 
is  your  property,  I  will  give  it  you,  and  not  else. 

Lord  Ellexborough.  —  This  is  a  quahfied  refusal,  and  no 
evidence  of  conversion.  Plaintiff  nonsuited. 

Note.  —  In  Robinson  v.  Burleigh,  5  N.H.  225,  the  court  said 
(p.  228) :  "Although  the  plaintiff  may,  in  fact,  have  been  entitled  to 
the  horse,  we  think  that  the  refusal  by  the  defendant  to  deliver  him, 
must  be  considered  as  the  result  of  a  reasonable  hesitation  in  a  doubt- 
ful m.atter,  and  that  it  cannot,  under  the  circumstances,  be  adjudged 
sufficient  evidence  of  a  conversion." 


ALEX.\NDER  v.   SOUTHEY. 

5  B.  &  Aid.  247.     1821. 

Trover  for  printing  types  and  other  goods.  Plea,  general  issue. 
At  the  trial  at  the  last  Guildhall  sittings  before  Best,  J.,  it  appeared 
that  the  defendant,  who  was  the  servant  of  the  Albion  Insurance 
Company,  had  in  his  custody  in  a  warehouse,  of  which  he  kept  the 
key,  certain  goods  belonging  to  the  plaintiff,  saved  from  a  fire  at  the 
plaintiff's  house,  and  which  had  been  carried  to  the  warehouse  by 
the  servants  of  the  Company.  The  only  evidence  of  a  conversion  was, 
that  when  the  plaintiff  dem.anded  the  goods  from  the  defendant,  the 
latter  said  that  he  could  not  deliver  them  up  without  an  order  from 
the  Albion  Office.  The  learned  Judge  left  it  to  the  jury  to  say, 
whether  this  ciualification  of  the  defendant's  refusal  was  a  reasonable 
one,  telKng  them,  that  if  so,  he  was  of  opinion,  that  there  was  not 
sufficient  evidence  of  a  conversion.  The  jury  accordingly  found  a 
verdict  for  the  defendant. 

Bayley,  J.  If  the  plaintiff  in  this  case  had  informed  the  defendant, 
that  he  had  previously  made  application  to  the  Insurance  Company, 
and  that  they  had  refused  permission  for  the  delivery  of  the  property, 
or  had  told  the  defendant,  that  he  expected  him  to  go  and  get  an  or- 
der, authorizing  the  delivery  of  the  property,  and  after  that,  the 
defendant  had  refused  either  to  deliver  the  goods  or  to  go  and  get 
such  order,  I  think  it  would  have  amounted  to  a  conversion  on  his 


326  WILSON    V.    ANDERTON.  [CHAP.  I. 

part:  but  here  the  defendant  had  the  goods  in  his  possession  as  the 
agent  of  the  Insurance  Company,  and  he  would  not  have  done  his 
duty  if  he  had  given  them  up  without  an  apphcation  to  his  employ- 
ers. He  only  gave,  as  it  seems  to  me,  a  quahfied,  reasonable,  and 
justifiable  refusal. 

HoLROYD,  J.  I  think  the  verdict  in  this  case  was  right.  In  point 
of  law.  the  goods  were  only  in  the  custody  of  the  defendant,  and  in 
the  possession  of  his  employers,  the  Insurance  Company.  If  we  were 
to  hold  this  refusal  to  be  a  conversion,  it  would  go  this  length,  that  if 
a  person  were  to  call  at  a  gentleman's  house,  and  to  ask  his  servant 
to  deliver  goods  to  him,  and  the  servant  were  to  refuse  to  do  so,  unless 
a  previous  application  was  made  to  his  master,  it  would  amount  to  a 
conversion  on  the  part  of  the  servant.  In  this  case,  the  goods  came 
into  the  defendant's  possession  lawfully,  and  the  refusal  is  only  till 
an  order  is  obtained  from  the  defendant's  employers.  In  Perkins  v. 
Smith,  the  defendant  received  the  goods  wrongfully  at  first,  and  the 
conversion  was  bj''  an  actual  sale  of  them.  Now  it  is  clear,  that  the 
authority  of  the  master  would  not  amount  to  a  defence  of  that  which 
was  altogether  a  tortious  act  of  the  servant.  The  case  of  Mires  v. 
Solehaij,  2  Mod.  242,  is  an  authority  in  point.  There,  the  servant 
refused  to  deliver  back  some  sheep  which  were  on  his  master's  land; 
and  it  was  held  to  be  no  conversion  on  his  part.  I  am  therefore  of 
opinion,  that  the  rule  should  be  refused. 

Note.  —  There  is  a  valuable  review  of  the  earlier  cases  on  quali- 
fied refusals  in  Dent  v.  Chiles,  5  Stew.  &  Port.  (Ala.)  383. 


WILSON  V.  ANDERTON. 

1  B.  &  Ad.  450.     1830. 

Chattels  belonging  to  A  came  into  the  hands  of  B.  B  deposited 
them  in  the  warehouse  of  C.  A  demanded  them  of  C,  and  C  refused  tc 
give  them  up  without  directions  from  B.  A  made  no  offer  of  indem- 
nity to  C,  and  C  asked  for  no  indemnity.  B  had  no  right  in  the  goods 
against  A.  The  question  was  whether,  on  these  facts,  C  had  con- 
verted the  chattels. 

Lord  Tenterden,  C.J.  If  the  law  be,  as  is  now  contended, 
there  has  rarely  been  a  sitting  at  Guildhall  where  injustice  has  not 
been  done;  for  the  title  to  goods  has  been  repeatedly  tried  in  ac- 
tions against  warehousemen.  A  bailee  can  never  be  in  a  better  sit- 
uation than  the  bailor.  If  the  bailor  has  no  title,  the  bailee  can 
have  none,  for  the  bailor  can  give  no  better  title  than  he  has.  The 
right  to  the  property  may,  therefore,  be  tried  in  an  action  against  the 
bailee,  and  a  refusal  like  that  stated  in  the  case  has  always  been 


SECT.  II.]  SINGER   MANUFACTURING    CO.    V.    KING.  327 

considered  evidence  of  a  conversion.  The  situation  of  a  bailee  is 
not  one  without  remedy.  He  is  not  bound  to  ascertain  who  has 
the  right.  He  may  file  a  bill  of  interpleader  in  a  court  of  equity. 
But  a  bailee  who  forbears  to  adopt  that  mode  of  proceeding,  and 
makes  himself  a  party  by  retaining  the  goods  for  the  bailor,  must 
stand  or  fall  by  his  title.    See  Com.  Dig.  Chancery,  3  T. 

LiTTLEDALE,  J.  There  is  no  doubt  that  the  property  in  the  goods 
was  in  the  plaintiffs,  and  that  the  defendant  or  Captain  Alondell 
had  not  any  lien  on  them  for  salvage.  The  question  is,  Whether, 
under  the  circumstances  stated  in  this  case,  the  bailee  can  set  up  any 
title  against  the  real  owner?  What  is  the  situation  of  a  bailee?  He 
has  no  other  title,  except  that  which  the  bailor  had.  As  to  the  nisi 
prius  case  before  Gould,  J.,  it  is  not  applicable  to  the  present  point. 
There  the  carrier,  on  the  goods  being  demanded  by  a  third  party, 
voluntarily  identified  himself  with  that  party,  by  proposing  to  retain 
them  on  an  indemnity,  and  offering  to  set  up  the  title  of  that  party 
on  an  action  by  the  bailor.  Now  a  lessee  cannot  dispute  the  title  of 
his  lessor  at  the  time  of  the  lease,  but  he  may  shew  that  the  lessor's 
title  has  been  put  an  end  to;  and  therefore  in  an  action  of  covenant 
by  the  lessor  a  plea  of  eviction  by  title  paramount,  or  that  which  is 
equivalent  to  it,  is  a  good  plea,  and  a  threat  to  distrain  or  bring  an 
ejectment,  by  a  person  having  good  title,  would  be  equivalent  to  an 
actual  eviction.  So  here,  if  the  bailor  brought  an  action  against  the 
defendant  as  bailee,  the  latter  might,  on  the  same  principle,  shew 
that  the  plaintiff  recovered  the  value  of  the  goods,  or  that,  on  being 
threatened  with  an  action  by  a  person  who  had  good  title  to  the 
goods,  he  had  dehvered  them  to  him.  Then,  the  next  question  is, 
Whether  there  was  evidence  of  a  conversion?  I  think  there  was;  for 
the  defendant  rested  his  right  to  retain  on  the  right  of  the  bailor, 
who  had  no  right  whatever.  There  was  an  unqualified  refusal,  and 
that  is  e\ddence  of  a  conversion,  unless  the  party  refusing  can  shew 
an  adverse  right  to  the  immediate  possession. 

Note.  —  See,  accord,  Lee  v.  Bayes,  18  C.  B.  599;  Rogers  v.  Weir, 
34  N.Y.  463,  471. 


SINGER  MANUFACTURING   CO.   v.   KING. 

14  R.I.  511.     1884. 

Durfee,  C.J.  This  is  trover  for  the  conversion  of  a  sewing 
machine  belonging  to  the  plaintiff  company.  The  case  was  tried  in 
the  Court  of  Common  Pleas  and  comes  here  on  exceptions.  The 
testimony  given  at  the  trial  for  the  plaintiff  went  to  show  that  the 
machine  was  demanded  of  the  defendant  by  direction  of  Charles  H. 


328  SINGER    MANUFACTURING    CO.    V.    KING.  [CHAP.  I. 

Harris,  agent  for  the  plaintiff,  and  that  the  defendant,  who  was  agent 
for  the  American  Sewing  Machine  Company,  though  he  had  the 
machine,  refused  to  deliver  it  until  storage  was  paid  for  it  or  until 
another  machine  belonging  to  the  American  Sewing  Machine  Com- 
pany which  the  plaintiff  had  was  returned.  The  defendant  testified 
that  the  machine  was  brought  to  him  by  one  Conner,  an  employee 
of  the  American  Sewing  Machine  Company;  that  he  was  instructed 
to  hold  it  for  storage,  and  that,  though  he  did  not  announce  it  when 
the  demand  was  made,  the  plaintiff  knew  that  he  was  agent  for  the 
American  Sewing  Machine  Company.  It  further  appeared  that  the 
machine  had  been  leased  to  a  Mrs.  Ljiich  by  the  plaintiff  company; 
that  Conner  had  received  it  from  her,  leavmg  a  machine  of  the  Ameri- 
can Company  in  place  of  it;  that  he  had  carried  it  to  Harris  and  that 
Harris  refused  to  receive  it,  saying  that  his  company  had  no  ma- 
chines out  w^hich  were  then  due;  that  he  then  carried  it  to  the  Ameri- 
can Sewing  Machine  Company  and  told  Harris  that  he  had  done  it. 
Harris  testified  in  reply  that  he  did  not  see  the  machine  when  Con- 
ner brought  it  and  that  he  had  not  authorized  any  one  to  store  it 
with  the  American  Company. 

1.  The  court  instructed  the  jury  that  if  the  defendant,  when 
demand  was  made  upon  him,  was  the  agent  of  the  American  Sewing 
Machine  Company,  and  was  holding  the  machine  under  their  orders 
and  not  for  himself  or  under  his  own  control,  then  the  defendant 
would  not  be  guilty.  The  plaintiff  excepted. 

2.  The  plaintiff  asked  the  court  to  instruct  the  jury  that  the 
defendant  would  be  guilty  unless  he  told  the  plaintiff  when  the  de- 
mand was  made  that  he  was  holding  the  machine  as  servant  of  the 
American  Sewing  Machine  Company.  The  court  refused  so  to  in- 
struct the  jury,  but  did  instruct  them  that  the  defendant's  omission 
to  give  the  information  would  not  constitute  a  conversion,  but  would 
be  evidence  for  them  to  consider  in  determining  the  question  as  to 
whether  he  was  holding  the  machine  as  agent  or  not.  The  plaintiff 
excepted.  The  question  is,  were  the  instructions  and  the  refusal  to 
instruct  correct. 

Ordinarily,  when  one  person  has  the  chattel  of  another,  it  is  his 
duty  to  deliver  it  to  the  owner  or  his  agent  on  demand,  and  if  he 
refuses  to  do  so,  his  refusal  is  evidence  of  a  conversion.  It  is,  however, 
only  prima  facie  evidence  and  may  be  explained.  Magee  v.  Scott, 
9  Cush.  148;  Robiyison  v.  Burleigh,  5  N.H.  225;  Dietusv.  Fuss,  8  Md. 
148;  Green  v.  Dunn,  3  Camp.  215;  Solo7no7is  v.  Daiues,  1  Esp.  83. 
Thus  it  is  no  conversion  for  the  bailee  of  a  chattel,  who  has  received 
it  in  good  faith  from  some  person  other  than  the  owner,  to  refuse  to 
deliver  it  to  the  owner  making  demand  for  it  until  he  has  had  time 
to  satisfy  himself  in  regard  to  the  ownership.  Carroll  v.  Mix,  51  Barb. 
S.C.  212;  Lee  v.  Bayes,  18  C.  B.  599,  Q07 ;  Sheridan  v.  The  New  Quay 
Co.,  4  C.  B.  N.S.  618;  Coles  v.  Wright,  4  Taunt.  198.  In  the  case  of  a 


?ECT.  II.]  SINGER    MANUFACTURING    CO.    V.    KING.  329 

servant  who  has  received  the  chattel  from  his  master,  it  has  been 
held  that  he  ought  not  to  give  it  up  without  first  consulting  his  mas- 
ter in  regard  to  it.  Mires  v.  Solebay,  2  Mod.  242,  245;  Alexarider  v. 
Southey,  5  B.  &  A.  247;  Berry  v.  Vantries,  12  Serg.  &  R.  89.  But  if, 
after  having  had  an  opportunity  to  confer  with  his  master,  he  relies 
on  his  master's  title  and  absolutely  refuses  to  comply  with  the 
demand,  he  will  be  liable  for  a  conversion.  Lee  v.  Robinson,  25  L. 
J.  C.  P.  249;  18  C.  B.  599;  1  Addison  on  Torts,  §  475;  Greenway  v. 
Fisher,  1  Car.  &  P.  190;  Stephens  v.  Elwell,  4  M.  &  S.  259;  Perkins  v. 
Smith,  1  Wils.  328;  Gage  v.  Whittier,  17  N.H.  312.  The  mere  fact 
that  he  refuses  for  the  benefit  of  his  principal  will  not  protect  him. 
Kimball  v.  Billings,  55  Me.  147. 

In  the  case  at  bar  the  defence  is  that  the  defendant,  acting  as 
agent  of  the  American  Sewing  Machine  Company,  refused  to  deliver 
the  machine  in  obedience  to  instructions  not  to  deliver  it  until 
storage  was  paid  for  it.  The  defendant  did  not  refuse  for  the  purpose 
of  consulting  his  principal,  but  it  would  seem  that  he  had  received 
his  instructions  before  the  demand  in  anticipation  of  it.  He  was  not 
a  mere  servant  but  an  agent,  and  he  may  have  been,  for  anything 
that  appears,  a  general  agent.  The  machine  came  to  him,  not  from 
his  master  or  principal,  as  in  Mires  v.  Solebay,  but  from  a  fellow 
employee,  and  he  may  have  knowai,  indeed  the  evidence  carries 
the  impression  that  he  did  know,  all  the  circumstances  in  regard 
to  it,  and  nevertheless  cooperated  with  his  principal  in  withholding 
it  from  its  owner  by  insisting  on  a  condition  which  neither  he  nor 
his  principal  had  any  right  to  impose.  If  such  was  the  fact,  we 
think  he  was  guilty;  and  yet,  if  such  was  the  fact,  the  jury  might 
have  found  him  not  guilty  under  the  instructions  given  by  the  court 
which  are  the  ground  of  the  first  exception.  The  first  exception 
must  therefore  be  sustained.  We  do  not  find  any  error  in  the  instruc- 
tions which  are  the  ground  of  the  second  exception,  except  in  so  far 
as  they  involve  a  repetition  of  instructions  before  given.  The  case 
will  be  remitted  for  new  trial. 

Exceptions  sustained. 

Note.  —  Mires  v.  Solebay,  2  Mod.  242.  The  defendant,  a  servant 
of  one  Marwood,  refused  to  deliver  up  sheep  to  the  plaintiff.  Both 
the  plaintiff  and  Marwood  claimed  title  to  the  sheep.  The  defendant 
was  held  not  guilty  of  conversion.  The  court  said  (p.  244):  "The 
action  will  not  lie  against  the  servant;  for  it  being  in  obedience  to  his 
master's  command,  though  he  had  no  title,  yet  he  shall  be  excused. 
And  this  rule  Justice  Scroggs  said  would  extend  to  all  cases  where 
the  master's  command  was  not  to  do  an  apparent  wrong;  for  if  the 
master's  case  depended  upon  a  title,  be  it  true  or  not,  it  is  enough 
to  excuse  the  servant;  for  otherwise  it  would  be  a  mischievous  thing, 
if  the  servant  upon  all  occasions  must  be  satisfied  with  his  master's 


330  THOROGOOD    V.    ROBINSON.  [CHAP.  I. 

title  and  right  before  he  obey  his  commands;  and  it  is  very  requisite 
that  he  should  be  satisfied,  if  an  action  should  he  against  him  for 
what  he  doth  in  obedience  to  his  master.  But  it  was  said,  the  servant 
cannot  plead  the  command  of  his  master  in  bar  of  a  trespass." 

In  Lee  v.  Bmjes,  18  C.B.  599,  Williams,  J.,  said  (p.  608) :  "Where 
the  servant  or  agent  absolutely  and  unqualifiedly  repudiates  the 
title  of  the  owner,  and  relies  upon  that  of  his  master  or  bailor,  as 
in  Wilson  v.  Anderton,  1  B.  &  Ad.  450,  his  refusal  to  admit  the  title 
of  the  owner  amounts  to  a  conversion." 

In  Elmore  v.  Brooks,  6  Heisk.  (Tenn.)  45,  a  railroad  agent,  under 
orders  from  the  superintendent  to  deliver  no  goods  consigned  to 
persons  who  had  gone  into  the  Federal  lines,  refused  to  deliver  goods 
to  the  order  of  such  a  consignee.  It  was  held  that  the  agent  was 
himself  liable  to  the  consignee. 


THOROGOOD  v.   ROBINSON. 

6  Q.  B.  769.     1845. 

Case  for  an  excessive  distress,  with  a  count  in  trover  for  lime, 
flints  and  breeze.  Pleas,  to  the  count  in  trover,  1.  Not  Guilty.  2. 
Not  possessed.  Issues  thereon.  No  question  arose  on  the  counts 
for  an  excessive  distress. 

On  the  trial,  before  Lord  Denman,  C.J.,  at  the  Middlesex  sittings 
after  last  Michaelmas  term,  it  was  proved  for  the  plaintiff  that  he 
was  a  limeburner,  and,  in  January,  1844,  was  in  possession  of  some 
land  and  of  the  lime,  breeze,  etc.,  in  the  declaration  mentioned, 
which  were  lying  on  the  land.  The  lime  had  been  burnt  in  kilns  on 
the  premises  from  chalk  dug  there  by  the  plaintiff.  The  defendant 
had  recovered  judgment  in  ejectment  for  the  land,  and,  on  the  day 
mentioned  in  the  declaration,  he  entered  under  the  writ  of  posses- 
sion, and  turned  two  of  plaintiff's  servants  off  the  premises,  who,  at 
the  time,  were  loading  a  barge  there  with  part  of  the  lime.  He  re- 
fused to  let  them  do  any  thing  to  the  kiln  fires,  or  put  any  more  of 
the  lime  on  the  barge.  The  defendant's  evidence  shewed  that  he 
was  entitled  to  the  land  as  landlord  of  a  person  in  whose  absence  the 
plaintiff  had  entered  without  title.  The  Lord  Chief  Justice  told  the 
jury  that  it  was  not  every  dealing  with  another  person's  goods  that 
amounted  to  a  conversion,  but  only  such  as  deprived  the  real  owner 
of  them;  that  under  the  circumstances  it  was  reasonable  that  the 
plaintiff  should  have  applied  to  the  defendant  to  have  the  articles 
which  belonged  to  plaintiff  delivered  to  him  again;  but  that  it  was  a 
question  for  the  jury  whether  the  conduct  of  the  defendant  was  a 
conversion  of  the  lime  and  breeze.  Verdict  for  defendant  on  both 
issues. 


SECT.  II.]  NICHOLS    V.    NEWSOM.  331 

Lord  Denman,  C.J.  In  leaving  this  case  to  the  jury,  I  endeav- 
oured to  act  in  conforaiity  with  the  decision  of  this  court  in  the  case 
of  Needham  v.  Rawbone,  Mich.  T.  1844,  and  I  said  that  it  was  a 
question  for  the  jury  whether  the  conduct  of  the  defendant  in  turn- 
ing the  plaintiff's  servants  off  the  premises,  and  not  letting  them 
take  away  the  lime  and  breeze,  amounted  to  a  conversion  or  not. 
I  think  the  jury  might  fairly  find  that  it  did  not.  The  defendant 
entered  the  premises  with  right,  and  had  a  right  to  turn  off  the 
plaintiff's  servants.  The  plaintiff  certainly  had  a  right  to  the  goods; 
but  he  should  have  sent  some  one  with  a  proper  authority  to  de- 
mand and  receive  them :  if  the  defendant  had  then  refused  to  de- 
liver them  or  to  permit  the  plaintiff  or  his  servants  to  remove  them, 
there  would  have  been  a  clear  conversion ;  but  it  does  not  necessarily 
result  from  the  facts  proved  in  this  case  that  the  defendant  was 
guilty  of  a  conversion.  I  am  inclined  to  think  that  the  plaintiff  is 
entitled  to  a  verdict  on  the  issue  on  the  plea  of  Not  possessed,  which 
will  probably  be  given  up  as  it  only  affects  the  costs  of  that  issue. 

Patteson,  J.  The  mere  turning  the  plaintiff's  servants  off  the 
premises  could  not  amount  to  a  conversion  of  the  goods;  for  the  de- 
fendant had  a  right  to  turn  the  servants  off. 

Coleridge,  J.  Neither  the  plaintiff  nor  his  servants  had  any  right 
to  be  upon  the  land ;  nor  was  the  defendant  bound  to  let  them  remain 
there  for  the  purpose  of  removing  the  plaintiff's  goods;  what  he  was 
bound  to  do  was,  on  demand,  to  let  the  plaintiff  remove  the  goods; 
or  to  remove  them  himself  to  some  convenient  place  for  the  plaintiff. 

WiGHTMAN,  J.,  concurred. 

Rule  refused. 

Note.  —  See  Delano  v.  Curtis,  7  All.  (Mass.)  470. 


NICHOLS  V.  NEWSOM. 

2  Murphey  (N.C.)  302.     1813. 

This  was  an  action  of  trover  for  a  quantity  of  lightwood  set  as  a 
tar-kiln  on  the  defendant's  land,  but  not  banked  or  turfed.  L'pon 
the  trial  it  appeared,  that  a  judgment  had  been  obtained  against 
the  defendant,  on  which  an  execution  was  issued  and  levied  on  the 
said  lightwood,  which  was  duly  advertised  and  sold  and  struck  off 
to  the  plaintiff  as  the  highest  bidder.  The  plaintiff  afterwards  ap- 
plied to  the  defendant  for  liberty  to  bank,  turf,  and  burn  the  kiln 
as  it  then  stood,  which  liberty  the  defendant  refusetl  to  grant.  The 
plaintiff  then  demanded  the  lightwood,  and  proposed  to  bring  his 
team  and  cart  it  off  the  defendant's  land;  whereupon  the  defendant 
replied,  if  the  plaintiff  came  on  his  premises  for  that  purpose,  he 


332  NICHOLS    V.    NEWSOM.  [cHAP.  I. 

would  sue  him.  There  was  no  evidence  of  an  actual  conversion,  and 
at  the  time  the  suit  was  commenced,  the  kiln  remained  in  the  same 
situation  in  which  it  was  when  purchased  by  the  plaintiff.  The  plain- 
tiff was  permitted  to  take  a  judgment  for  twenty  pounds,  the  value 
of  the  kiln,  with  leave  to  the  defendant  to  have  the  verdict  set  aside 
and  a  non-suit  entered,  provided  the  court  should  be  of  opinion  the 
plaintiff  was  not  entitled  to  recover  in  this  action,  on  the  foregoing 
facts,  and  on  motion  of  the  defendant  the  case  was  transmitted  to 
this  court  for  the  opinion  of  the  judges.  On  this  case,  the  court  were 
divided  in  opinion. 

LowRiE,  Judge,  delivered  the  opinion  of  the  majority  of  the  court. 

The  action  of  trover  is  the  legal  remedy  to  recover  damages  for  the 
unlawful  conversion  of  a  personal  chattel.  The  lightwood  was  a  chat- 
tel of  this  description,  and  the  purchase  under  the  execution  vested 
in  the  plaintiff  a  right  to  it.  The  hghtwood,  however,  being  bulky, 
and  too  cumbrous  to  be  immediately  moved  from  the  defendant's 
land  on  which  it  was  sold,  the  law  will  presume,  unless  by  some 
express  and  unequivocal  act  of  the  debtor  such  presumption  should 
be  destroyed,  that  it  was  left  there  by  his  consent  and  in  his  posses- 
sion until  the  necessary  arrangement  could  be  made  for  taking  it 
away.  In  all  cases  where  the  consent  of  one  man  becomes  necessary, 
and  without  which  another  cannot  conveniently  enjoy  his  property, 
the  law  presumes  such  consent  to  be  given,  unless  the  contrarj^  ex- 
pressly appears.  Whenever  therefore  a  man  purchases  heavy  articles 
at  a  sheriff's  sale,  such  as  corn,  fodder,  hay-stacks,  etc.,  which  it  is 
not  presumable  he  is  prepared  immediately  to  take  away,  he  may,  if 
not^prohibited  by  the  debtor,  return  in  a  peaceable  manner  and  law- 
fully enter  upon  the  freehold,  or  into  the  enclosures  of  such  debtor, 
or  other  person  on  whose  land  such  articles  were  sold  for  the  purpose 
of  taking  them  away.  But  in  the  present  case,  such  presumption 
ceased  to  exist  the  moment  the  defendant  expressly  prohibited  the 
plaintiff  from  entering  upon  his  freehold  and  threatened  him  with  a 
suit,  if  he  did  enter.  After  such  express  prohibition,  the  entry  of  the 
plaintiff  could  not  be  a  peaceable  and  lawful  one.  The  law  will  not 
permit  one  man  to  enter  upon  the  possession  of  another  for  the 
assertion  of  a  mere  private  right,  which  he  may  have  to  an  article 
of  personal  property,  against  the  express  prohibition  of  him  in  pos- 
session; such  permission  would  be  attended  with  consequences  very 
injurious  to  the  peace  of  society.  We  therefore  think,  that  the  re- 
fusal of  the  defendant,  as  stated  in  this  case,  was  such  evidence  of 
a  conversion  as  was  proper  to  be  left  to  a  jury.  The  conduct  of  the 
defendant  reduced  the  plaintiff  to  the  necessity  of  asserting  his  right 
by  an  action  at  law.  "  If  a  man  give  leave  to  have  trees  put  into  his 
garden,  and  afterwards  refuse  to  let  the  owner  take  them,  it  will  be 
a  conversion."  Com.  Dig.  action  on  the  case.  Title  Trover  E.  This 
case  differs  from  that  to  be  found  in  Gilbert's  Law  of  Evidence,  262, 


SECT.  II.]  NICHOLS   V.    NEWSOM.  333 

and  in  the  5th  Bac.  Abr.  Trover  B;  where  there  was  a  refusal  to  de- 
liver a  beam  of  timber;  for  here  was  not  only  a  refusal  to  deliver,  but 
a  refusal  to  suffer  the  plaintiff  to  take  the  lightwood  into  his  posses- 
sion and  cart  it  away,  coupled  with  a  declaration  that  if  the  plain- 
tiff entered  upon  his  freehold  for  that  purpose,  he  would  sue  him. 
The  plaintiff  was  under  no  necessity  to  enter  upon  the  defendant's 
land  and  thereby  incur  the  trouble  and  expense  of  a  law-suit.  We 
therefore  think  the  rule  for  a  new  trial  should  be  discharged. 

Note.  —  In  the  following  cases  A's  goods  were  upon  B's  land, 
B  refused  to  let  A  take  them  away,  and  B  was  held  to  have  converted 
them.  Pattison  v.  Robinson,  5  M.  &  S.  105;  V/ansbrough  v.  Maton, 
4  Ad.  &  E.  884;  Badger  v.  Batavia  Mfg.  Co.,  70  111.  302;  Pidlen  v. 
Bell,  40  Me.  314;  Hinckley  v.  Baxter,  13  All.  (Mass.)  139;  Guthrie  v. 
Jones,  108  Mass.  191.  In  these  cases  the  goods  came  on  the  land  of 
B,  by  the  consent  either  of  B,  or  of  his  predecessor  in  title  to  the  land. 

In  Anthony  v.  Haney,  8  Bing.  186,  the  plaintiff  sued  in  trespass. 
The  defendants  pleaded  that  certain  goods  belonging  to  them  were 
on  the  plaintiff's  close,  and  that  they  entered  to  take  them,  doing 
no  unnecessary  damage.  The  defendants  did  not  show  how  their 
goods  had  come  upon  the  plaintiff's  close.  The  plea  was  held  bad. 
TiNDAL,  C.J.,  said  (p.  191):  "A  case  has  been  suggested  in  which 
the  owner  might  have  no  remedy  where  the  occupier  of  the  soil  might 
refuse  to  deliver  up  the  property,  or  to  make  any  answer  to  the  own- 
er's demand;  but  a  jury  might  be  induced  to  presume  a  conversion 
from  such  silence,  or  at  any  rate  the  owner  might  in  such  a  case 
enter  and  take  his  property,  subject  to  the  payment  of  any  damage 
he  might  commit." 

In  Town  v.  Hazen,  51  N.H.  596,  A's  wood  was  on  B's  land,  and  B 
refused  to  allow  him  to  enter  to  remove  it.  The  circumstances  were 
not  fully  shown  and  the  court  ordered  a  new  trial.  The  court  said 
(p.  598):  "It  seem.s  clear  that  the  defendant  would  not  necessarily 
become  liable  in  trover  for  the  wood,  by  refusing  to  give  permission 
to  the  plaintiffs  to  enter  his  land  to  remove  it." 

In  Roach  v.  Damron,  2  Humph.  (Tenn.)  425,  the  court  said  (p. 
427):  "The  fact  that  one  man  has  personal  property  witiiin  the 
enclosure  of  another  does  not  authorize  the  owner  of  such  property 
to  enter  the  enclosure  for  the  purpose  of  taking  such  property  in  his 
possession.  He  should  demand  it  of  the  owner  of  the  land,  and  if 
he  refuse  him  permission  to  take  it,  such  refusal  would  be  evidence 
of  a  conversion,  for  which  an  action  would  lie." 

In  Dozier  v.  Pillot,  79  Tex.  224,  the  court  said  (p.  226):  "If  the 
property  be  in  the  house  of  another,  the  owner  cannot  repossess 
himself  of  it  against  such  other's  will  without  connnitting  a  trespass, 
and  hence  a  refusal  to  deliver  may  be  deemed  a  conversion." 


334  DEARBOURN    V.    UNION    NATIONAL    BANK.  [CHAP.  I 

DEARBOURN  v.  IINION  NATIONAL  BANK. 

58  Me.  273.     1870. 

Appleton,  C.J.  This  is  an  action  of  trover  against  the  defendants 
for  the  alleged  conversion  of  certain  bonds  of  the  United  States, 
together  with  the  coupons  attached.  The  bonds  were  left  with  the 
bank  either  as  securit}^  for  notes  of  the  plaintiff  discounted  there, 
or  on  deposit.  In  either  event,  the  bank  would  be  liable  in  trover  for 
a  conversion  to  its  own  use  of  the  plaintiff's  bonds,  but  not  for  a  loss 
through  negligence  or  by  larceny. 

In  trover,  a  demand  and  refusal  make  out  a  prima  fade  case.  But 
this  is  rebutted  by  proof  that  the  property  demanded  was  not  at 
the  time  of  the  demand  in  the  defendants'  possession,  nor  under  their 
control.  Boobier  v.  Boohier,  39  Maine,  407.  Trover  will  not  lie 
against  a  bailee  when  the  goods  have  been  lost  or  stolen.  Hawkins 
V.  Hoffman,  6  Hill,  586.  There  must  be  some  wrongful  act  on  the 
part  of  the  defendant.  A  loss  by  mere  nonfeasance  will  not  sustain 
this  form  of  action.  Bowlin  v.  Nye,  10  Cush.  41G.  Trover  cannot  be 
maintained  against  a  common  carrier  for  not  delivering  goods  in- 
trusted to  him  for  transportation,  if  the  goods  are  not  in  his  posses- 
sion at  the  time  of  the  demand,  and  have  been  either  lost  or  stolen. 
Packard  v.  Gilman,  4  Wend.  613.  Indeed  there  seems  an  entire  con- 
currence of  authorities  that  in  case  of  a  loss  of  goods  by  a  bailee, 
or  of  a  larceny  from  him,  that  he  is  not  liable  in  trover. 

The  evidence  fails  to  show  how  the  loss  of  the  bonds  in  question 
occurred.  The}'  may  have  been  lost,  stolen,  or  misdelivered.  The 
evidence  tends  equally  to  sustain  any  one  of  these  propositions.  In 
such  case  no  one  of  them  can  be  regarded  as  established.  Here,  the 
action  can  only  be  maintained  on  proof  of  misdelivery,  if  at  all,  and 
that  fact  is  not  shown.  Smith  v.  First  National  Bank  in  Westfield, 
99  Mass.  605. 

The  demand  for  these  bonds  was  made  by  the  plaintiff  in  August, 
1868,  and  by  his  attorney  in  the  following  October.  The  proof  is 
satisfactory  that  before  either  of  these  dates  the  bonds  in  question 
had  ceased  to  be  in  the  custody  or  under  the  control  of  the  defend- 
ants. 

If  they  were  stolen  or  lost  through  negligence,  whatever  remedy 
the  plaintiff  has  is  in  assumpsit,  when  a  contract  is  proved  to  exist, 
or  in  case,  for  negligence.  The  writ  contains  only  a  count  in  trover, 
and  the  evidence  fails  to  establish  any  conversion  by  the  defend- 
ants. Plaintiff  nonsuit. 

Note.  —  In  Johnson  v.  Couillard,  4  All.  (Mass.)  446,  the  defend- 
ant had  requested  the  trial  justice  to  rule  "that  no  recovery  can  be 
had  in  this  action  against  the  defendant,  unless  it  shall  appear  that 


SECT.  II.]  SCARFE    V.    MORGAN.  335 

before  the  demand  and  refusal  he  actually  converted  said  property^ 
or  that  at  the  time  of  the  demand  and  refusal  he  had  it  in  his  powe/ 
to  give  up  the  property."  The  trial  justice  omitted  to  complj^  with 
this  request.  The  court  said  this  was  palpable  error.  See,  accord, 
Hill  V.  Covell,  1  N.Y.  522;  Morris  v.  Thomson,  1  Rich.  (S.C.)  65; 
Knapp  V.  Winchester,  11  Vt.  351. 


BOARDiVIAN  v.   SILL. 

1  Camp.  410.     1808. 

Trover  for  some  brandy,  which  lay  in  the  defendant's  cellars, 
and  which  when  demanded  he  had  refused  to  deliver  up,  saying  it 
was  his  own  property.  At  this  time  certain  warehouse  rent  was  due 
to  the  defendant  on  account  of  the  brandy,  of  which  no  tender  had 
been  made  to  him.  The  Attorney-General  contended  that  the  defend- 
ant had  a  lien  on  the  brandy  for  the  warehouse  rent,  and  that  till  this 
was  tendered  trover  would  not  lie.  But  Lord  Ellenborough  con- 
sidered, that  as  the  brandy  had  been  detained  on  a  different  ground, 
and  as  no  demand  of  warehouse  rent  had  been  made,  the  defendant 
must  be  taken  to  have  waived  his  lien,  if  he  had  one,  —  which  would 
admit  of  some  doubt. 

The  plaintiff  had  a  verdict. 


SCARFE  V.   MORGAN. 

4  M.  &  W.  270.     1838. 

Trover  for  a  mare.  Pleas,  first,  not  guilty;  secondly,  that  the 
mare  was  not  the  property  of  the  plaintiff.  At  the  trial  before  Parke, 
B.,  at  the  last  Assizes  for  the  county  of  Suffolk,  it  appeared  that  the 
mare  in  question  had  been  sent  on  more  than  one  occasion  to  the 
premises  of  the  defendant,  who  was  a  farmer,  to  be  covered  by  a 
stallion  belonging  to  him,  and  the  charge  of  lis.  for  the  last  occasion 
not  having  been  paid,  the  defendant  refused  on  demand  to  deliver 
up  the  mare,  claiming  a  lien  not  only  for  the  lis.,  but  for  a  further 
sum  amounting  altogether  to  91.  7s.  4^rf.,  for  covering  other  mares 
belonging  to  the  plaintiff,  and  including  also  a  small  sum  for  poor- 
rates;  on  which  demand  and  refusal,  the  plaintiff,  without  making 
any  tender  of  the  lis.,  brought  the  present  action. 

Parke,  B.  As  to  the  first  point  argued  by  Mr.  Kelly,  the  court 
are  unanimous  in  considering  that  if  the  defendant  had  a  lien,  he  did 
not  waive  it  under  the  circumstances  of  this  case,  by  claiming  to  hold 
the  mare  not  merely  for  the  expense  of  covering  her,  but  also  for  tly 


336  SCARFE    V.    MORGAN.  [CHAP.  I. 

expense  of  covering  other  mares  belonging  to  the  same  plaintiff,  and 
also  for  some  pajonents  made  in  respect  of  poor-rates  which  he  had 
against  him.  The  only  way  in  which  such  a  proposition  could  be 
established,  would  be  to  shew  that  the  defendant  had  agreed  to 
waive  the  lien,  or  that  he  had  agreed  to  waive  the  necessity  of  a  ten- 
der of  the  minor  sum  claimed  to  be  due.  Looking  at  the  mode  in 
which  he  made  the  claim,  and  at  the  ground  on  which  he  considered 
it  to  be  made,  I  think  it  is  clear  he  has  not  waived  the  lien,  or  excused 
the  necessity  of  making  a  tender;  for  when  the  demand  was  made, 
he  said,  "I  have  a  general  account  with  you,  on  which  a  balance  is 
due  to  me  of  so  much,"  and  part  of  it  was,  particularly,  a  charge  of 
lis.  for  covering  this  mare.  The  cases  referred  to  by  Mr.  Kelly  seem 
to  be  distinguishable  from  the  present.  In  the  case  of  Boardman  v. 
Sill,  the  defendant  did  not  mention  his  lien  at  all,  but  claimed  to  hold 
the  goods  on  the  ground  of  a  right  of  property  in  them,  and  did  not 
set  up  any  claim  of  lien  at  all.  In  Knight  v.  Harrison,  the  ground  of 
refusal  was,  that  the  right  of  property  was  in  another  person  as  to  the 
goods  in  question,  and  that  he  had  a  general  lien  for  expenses  on 
those  goods.  Neither  of  those  two  cases  appears  to  me  to  apply  to 
the  present.  In  this  case  it  would  be  strange  to  say  that  the 
defendant  meant  to  waive  his  lien  of  the  lis.,  when  that  was  one 
of  the  things  he  said  he  would  hold  the  mare  for,  and  it  would  be 
equally  strange  to  say  that  he  meant  to  excuse  the  tender  of  that 
sum,  when  no  tender  was  made  of  any  sum  at  all.  I  do  not  mean  to 
say  that  such  circumstances  may  not  occur  as  would  amount  to  the 
waiver  of  a  lien,  and  of  the  tender,  but  that  a  great  deal  more  must 
have  passed  than  was  proved  to  have  passed  on  the  present  occasion. 
If  he  had  said,  "You  need  not  trouble  yourself  to  make  a  tender  of 
the  sum  for  which  I  have  a  lien,  and  I  shall  claim  to  hold  the  mare 
for  it,"  the  plaintiff  would  then  be  in  the  same  situation  as  if  a  tender 
had  been  made;  but  we  think  the  defendant  cannot  be  deprived  of 
his  right  of  holding  the  property  on  which  he  had  a  hen,  by  any 
thing  that  has  passed  on  the  present  occasion. 

Alderson,  B.  It  seems  to  me  a  monstrous  proposition,  to  say  that 
a  party  who  claims  in  respect  of  two  sums  to  detain  a  mare,  is  to  be 
supposed  to  have  waived  his  right  to  detain  her  as  to  one.  The  more 
natural  conclusion  is,  that  the  defendant  intended  to  act  upon  both ; 
if  so,  and  if  the  other  party  is  informed  of  that,  it  then  became  his 
duty  to  consider  whether  he  would  tender  one  or  the  other;  and  with 
respect  to  the  observation  that  has  been  cited  as  having  fallen  from 
Lord  Tenterden,  that,  if  the  defendant  had  given  notice,  the  plain- 
tiff would  have  paid,  an  equally  strong  observation  appears  to  arise 
the  other  way;  for  probably  had  the  plaintiff  said,  "I  tender  you  this 
sum,  which  I  admit  I  am  bound  to  pay,"  it  might  cause  the  defendant 
to  reflect  whether  he  really  had  a  right  to  detain  the  mare  as  to  the 
other.  It  seems  to  me  you  cannot  say,  that,  because  the  party  claims 


SECT.  II.]  JONES  V.    TARLETON,  337 

more  than  it  may  be  ultimately  found  he  had  a  right  to,  he  would  not 
have  a  right  to  a  tender  of  the  sum  which  the  other  ought  to  pay. 


JONES  V.  TARLETON. 

9  M.  &  Vi'.  675.     1S42. 

Trover  for  pigs. — Pleas;  first,  not  guilty;  secondly,  not  pos- 
sessed; on  which  issues  were  joined.  At  the  trial  before  Coltman,  J., 
at  the  last  assizes  for  Anglesey,  it  appeared  that  the  plaintiff  was  a 
pig-drover  in  Anglesey,  and  the  defendant  was  the  owner  of  a  steam- 
vessel,  plying  between  the  Menai  Bridge  and  Liverpool.  The  pbin- 
tiff  had  been  in  the  habit  of  shipping  pigs  by  the  defendant's  vessel 
for  Liverpool;  and  on  the  30th  January-,  1841,  he  sent  bj^  it  a  number 
of  pigs,  of  which,  on  their  arrival  at  Liverpool,  the  defendant's  agent 
there  detained  three,  to  satisf  j'  an  alleged  lien  in  respect  of  a  balance 
which  he  claimed  to  be  due  from  the  plaintiff  on  the  freight  of  former 
shipments.  On  the  19th  February,  the  plaintiff  shipped  another 
cargo,  the  whole  of  which  the  defendant,  by  his  agent,  detained  on 
the  sam.e  ground.  There  was  conflicting  e^ddence  as  to  whether  the 
plaintiff  had  made  any  offer  of  payment  of  the  freight  of  these  two 
cargoes;  but  according  to  the  e-sddence  of  the  witnesses  for  the  plain- 
tiff, he  had,  on  each  occasion,  produced  a  purse  of  sovereigns,  and 
stated  that  he  was  ready  to  pay  the  freight  for  that  cargo,  but  the 
defendant's  agent  claimed  a  further  sum  of  about  £5,  in  respect  of 
the  old  balance,  which  the  plaintiff  refused  to  pay,  denjdng  that  it 
was  due.  No  precise  amount  was,  however,  actually  tendered  by  the 
plaintiff. 

The  trial  judge  told  the  jury  that  if  thej'  thought  the  plaintiff  was 
ready  to  pay  all  that  was  really  due  from  him,  but  did  not  pay  it 
because  the  defendant  demanded  something  more,  that  was  suffi- 
cient, without  tender  or  pajTnent  of  the  specific  sum. 

Parke,  B.  As  to  the  tender,  the  direction  of  the  learned  judge 
amounts  to  this,  that  if  the  defendant  refused  to  deliver  the  pige 
until  payment  of  the  old  account,  which  he  had  no  right  to  demand, 
that  was  a  waiver  of  an  express  tender.  I  think  it  was  a  perfectly 
correct  direction. 

Alderson,  B.  I  am  of  the  same  opinion.  With  respect  to  the 
question  as  to  the  sufficiency  of  the  tender,  I  think  if  the  defendant 
absolutely  refused  to  deliver  the  pigs  when  they  were  demanded, 
until  pajTnent  by  the  plaintiff,  not  only  of  the  freight  for  that  par- 
ticular cargo,  but  also  of  the  freight  due  on  a  former  account,  and 
which,  as  now  appears  by  the  finding  of  the  jury,  the  defendant  was 
not  entitled  to  demand,  that  must  be  considered  as  a  waiver  of  any 
tender  of  the  precise  sum  really  due,  and  which  the  plaintiff  was 


338  HANNA    V.    PHELPS.  [CHAP.  L 

ready  to  pay:  it  was  equivalent  to  saying  to  the  plaintiff,  "Do  what 
you  will,  tender  what  you  will,  it  is  of  no  use,  I  will  not  receive  it 
unless  you  pay  the  old  account  also."  It  would  have  been  different 
if  the  defendant  had  merely  demanded  too  large  a  sum  in  respect  of 
the  same  subject-matter;  in  that  case,  the  plaintiff  would  perhaps 
have  been  bound  to  tender  a  reasonable  sum,  before  he  could  have 
been  entitled  to  the  possession  of  the  goods  demanded. 

Rule  refused. 


HANNA  V.  PHELPS. 

7  Ind.  21.     1855. 

Davison,  J.  The  court,  upon  the  defendants'  motion,  gave  a  writ- 
ten statement  of  the  facts  on  which  its  finding  was  based,  and  of  the 
conclusions  of  law  arising  on  the  facts.  That  statement  is  as  follows: 

1.  The  plaintiff  delivered  to  the  defendants,  as  bailees,  two  thou- 
sand one  hundred  hogs'  heads,  out  of  which  lard  was  to  be  rendered 
by  them  for  him,  which  heads  each  produced  four  pounds  of  lard, 
making  eight  thousand  four  hundred  pounds. 

2.  The  defendants  delivered  to  the  plaintiff,  af  Jackson's  ware- 
house, in  the  town  of  Wabash,  in  twenty-three  barrels,  five  thou- 
sand one  hundred  and  sixty-two  pounds  of  lard,  leaving  unaccounted 
for  and  undelivered,  three  thousand  two  hundred  and  thirty-eight 
pounds.  The  lard  was  worth  5  cents  per  pound,  making  for  the  last- 
named  quantity,  in  money,  161  dollars  and  90  cents.  As  a  compen- 
sation for  rendering  said  lard,  the  defendants  were  entitled  to  84 
dollars,  leaving  a  balance  due  the  plaintiff  of  77  dollars  and  90  cents. 

3.  The  plaintiff,  after  the  delivery  of  the  twenty-three  barrels, 
and  before  the  commencement  of  this  suit,  notified  the  defendants 
to  deliver  to  him  all  the  lard  made  from  said  heads ;  but  they  declined 
to  deliver  any  more  lard.  He  did  not,  at  any  time  before  this  suit, 
either  pay  or  tender  to  them  any  sum  for  their  ser\ices,  nor  was  any 
demand  made  by  them  for  such  services.  When  the  twenty-three 
barrels  were  delivered,  the  lard  was  subject  to  their  claun  for  render- 
ing the  same,  amounting  to  51  dollars  and  63  cents,  which  amomit 
was  never  paid  to  them.  The  delivery  at  Jackson's  warehouse  was 
with  his  consent. 

These  were  all  the  facts  proved  in  the  cause;  and  upon  them  the 
court,  as  a  conclusion  of  law,  decided  that  no  pajTnent  or  tender  for 
services  in  rendering  the  lard  was  necessary  before  suit.  '^■ 

Was  this  decision  correct?  Generally  speaking,  if  a  chattel  deliv- 
ered to  a  party  receive  from  his  labor  and  skill  an  increased  value, 
he  has  a  specific  lien  upon  it  for  his  remuneration,  provided  there  is 
nothing  in  the  contract  inconsistent  with  the  existence  of  the  lien. 


SECT.  II.]  HANNA    V.    PHELPS.  339 

And  such  lien  exists  equally  whether  there  be  an  agreement  to  pay  a 
stipulated  price  for  "the  labor  and  skill,"  or  an  implied  contract  to 
pay  a  reasonable  price.  The  present  is  one  of  the  cases  in  which  liens 
usually  exist  in  favor  of  the  party  who  has  bestowed  services  on 
property  dehvered  to  him  for  the  purpose.  And  unless  the  record 
discloses  facts  or  circumstances  sufficient  to  produce  the  inference 
that  the  defendants  waived  their  hen  before  the  institution  of  this 
suit,  they  were  not  compelled  to  give  up  the  property,  when  the  plain- 
tiff demanded  it,  without  the-  pa;y'ment  or  tender  of  a  reasonable 
compensation  for  rendering  and  barrehng  the  lard.  If  the  defendants, 
at  the  time  of  the  demand,  had  refused,  on  the  ground  of  their  lien, 
to  part  with  the  property,  the  law  of  this  case  would  be  clearly  in 
their  favor;  but  here  the  plaintiff's  demand  was  answered  by  an 
absolute  refusal  to  deliver  any  more  lard.  We  are  therefore  to  in- 
quire whether  that  refusal  waived  the  lien. 

Upon  this  subject  the  authorities  are  not  uniform.  In  England, 
the  rule  seems  to  be,  that  a  person  having  a  lien  upon  goods,  does 
not  waive  it  by  the  mere  fact  of  his  omitting  to  state  that  he  claims 
them  in  that  right,  when  the}'  are  dem^anded.  But  if  a  different 
ground  of  retention  than  that  of  the  lien  be  assumed,  the  lien  ceases 
to  exist.  White  v.  Gainer,  9  Moore,  41;  2  Bing.  23;  1  Carr.  and  P. 
324;  1  Camp.  410.  It  is,  however,  contended  that  the  refusal  of  the 
defendants  to  have  shielded  them,  should  have  been  qualified  by 
their  claun  of  a  lien.  There  is  authority  in  support  of  that  position. 
Dow  V.  Morewood,  10  Barb.  183,  was  replevin  for  twenty-one  cans 
of  oil.  In  that  case,  it  was  held  "that  the  defendant,  having,  upon 
demand  made,  refused  to  deliver  the  oil  to  the  plaintiff  without 
setting  up  any  hen  thereon,  waived  his  right  to  set  up  a  lien  after- 
wards for  freight,  etc. ;  that  he  could  not  be  allowed  to  deny  the  plain- 
tiff's title,  before  suit  brought,  and  afterwards  defeat  a  recovery  by 
setting  up  a  Hen." 

We  are  inclined  to  adopt  this  rule  of  decision.  An  unqualified 
refusal,  upon  a  demand  duly  made,  is  evidence  of  a  conversion;  be- 
cause it  involves  a  denial  of  any  title  whatever  in  the  person  who 
makes  the  demand.  In  the  case  before  us,  the  defendants  "declined 
to  deliver  any  more  lard."  This  was,  in  effect,  an  assumption  that 
they  had  in  their  possession  no  more  belonging  to  the  plaintiff.  At 
least  he  had  a  right  to  infer  from  their  answer  to  his  demand,  that 
they  would  deliver  to  him  no  more  lard,  unless  compelled  to  do  so 
by  action  at  law.  And  having  thus  assumed  a  position  relative  to 
the  property  inconsistent  with  his  title,  he  had,  further,  the  right  to 
infer  that  a  tender  to  the  defendants  for  their  services  would  be 
unavailing.  We  are  of  opinion  that  the  facts  proved  are  sufficient  to 
sustain  the  judgment. 

Note.  —  In  Spence  v.  McMillan,  10  Ala.  583,  the  court  said  (p. 


340  FOLSOM    V.    BARRETT.  [cHAP.  I. 

588) :  "It  is  not  shown  that  the  defendant  was  entitled  to  any  com- 
pensation for  keeping  the  money  or  slave,  but  if  such  was  the  case, 
he  would  not  be  allowed  to  defend  this  suit  on  this  point,  unless  he 
insisted  on  the  claim  for  compensation,  as  the  only  excuse  for  fail- 
ing to  deliver  it  when  it  was  demanded." 

In  Thom-pson  r.  Rose,  16  Conn.  71,  the  court  said  (p.  85) :  "He  set 
up  no  such  claim  at  the  time  but  made  an  unqualified  refusal.  Had 
this  refusal  been  qualified,  by  this  claim  of  lien,  the  plaintiffs  might 
have  met  it,  and  obviated  it;  but  the  defendant  keeps  it  a  secret  in 
his  own  breast,  and  now  seeks  to  defeat  the  plaintiffs'  action,  by  a 
claim  before  unknown." 

See  also  Fowler  v.  Parsons,  143  Mass.  401,  407;  Judah  v.  Kemp, 
2  Johns.  Cas.  (N.Y.)  411;  Williams  v.  Smith,  153  Pa.  462. 


FOLSOM   V.   BARRETT. 

180  Mass.  439.     1902. 

Hammond,  J.  On  July  27,  1899,  the  plaintiff  had  a  lien  upon  the 
horse  Sun  Pointer,  to  secure  him  for  the  pajTnent  of  the  expenses 
of  its  keeping  up  to  that  time.  The  amount  due  as  claimed  by  the 
plaintiff  was  $300.96,  and,  although  requested  by  the  defendant, 
he  refused  to  deliver  up  the  horse  except  upon  the  payment  of  that 
sum.  The  auditor  has  found  that  the  balance  due  at  that  time  was 
only  S129.17. 

The  defendant  requested  the  judge  to  rule  in  substance,  that  (1) 
if  the  defendant  demanded  th*^  horse  of  the  plaintiff  and  the  plain- 
tiff refused  to  deliver  him  up  except  upon  the  pajTnent  of  a  certain 
sum  which  was  larger  than  the  sum  actually  due,  then  as  matter  of 
law  the  plaintiff  wrongfully  held  the  horse;  and,  (2)  if  the  defendant 
requested  of  the  plaintiff  a  statement  of  the  amount  due,  so  that  the 
defendant  could  pay  what  was  due  and  take  his  horse,  and  if  upon 
that  the  plaintiff  stated  that  he  would  not  give  up  the  horse  except 
upon  the  payment  of  a  certain  sum  then  named  by  him  which  was 
materially  in  excess  of  the  amount  actually  due,  then  the  defendant 
was  not  bound  to  tender  any  sum  to  the  plaintiff,  and  the  latter 
wrongfully  held  the  horse. 

The  judge  refused  to  rule  as  requested,  but  ruled  in  substance, 
that  if  the  plaintiff  fraudulently  claimed  more  than  was  due  for  the 
purpose  of  keeping  possession  of  the  horse,  he  wrongfullj'  kept  the 
horse;  but  that  if  he  believed  the  sum  due  him  to  be  as  stated  by  him 
at  the  time  he  refused  to  deliver  the  horse,  then  the  fact  that  that 
sum  was  excessive  would  not  work  a  discharge  of  the  lien.  No  in- 
structions were  given  as  to  the  subject  of  tender. 

Where  a  lienor  bases  his  refusal  to  surrender  property  upon  some 


SECT.  II.]  FOLSOM  V.    BARRETT.  341 

right  independent  of  or  inconsistent  with  the  lien,  it  is  held  that  he 
has  waived  his  lien  and  he  cannot  afterwards  set  it  up.  Boardman 
V.  Sill,  1  Camp.  410,  n.;  Dii'ks  v.  Richards,  4  Man.  &  Gr.  574.  But 
that  is  not  this  case.  Here  the  plaintiff  expressly  named  his  lien 
and  insisted  upon  it,  and  there  was  no  question  as  to  its  nature.  It 
was  for  the  keeping  of  the  horse  a  certain  definite  time.  He  based 
his  right  to  hold  the  horse  upon  that  lien  and  upon  nothing  else. 
His  demand,  however,  was  excessive.  He  was  right  as  to  the  exist- 
ence of  the  lien  upon  which  right  alone  he  was  insisting,  but  wrong 
as  to  the  amount  due.  If  he  fraudulently  claimed  more  than  was 
due  he  lost  his  lien,  but  if  his  claim  was  made  in  good  faith,  it  was 
still  in  the  power  of  the  defendant  to  discharge  the  lien  by  a  pay- 
ment of  the  sum  actually  due.  If  such  a  pajment  had  been  made  at 
that  time,  the  lien  would  have  been  destroyed  and  consequently  the 
subsequent  detention  of  the  horse  by  the  plaintiff  would  have  been 
wrongful;  and  that  would  have  been  so  whether  or  not  the  plaintiff 
honestly  believed  his  claim  to  be  correct.  The  lien  v/as  simply  a  right 
to  hold  the  horse  until  a  certain  sum  was  paid,  and  when  that  sum 
was  paid  the  right  was  gone.  The  good  faith  of  the  plaintiff  could 
not  increase  that  sum.  The  same  result  would  have  followed  if  a 
tender  of  the  sum  due  had  been  made  and  refused.  Co.  Lit.  207  a; 
Coggs  V.  Bernard,  Ld.  Raym.  909,  917;  Bac.  Abr.  Bailment  (B); 
Jarvis  v.  Rogers,  15  Mass.  389,  409;  Schayer  v.  Commonwealth  Loan 
Co.,  163  Mass.  322,  and  cases  cited. 

No  pa}Tnent  or  tender,  hovrever,  was  made ;  and  where,  as  in  this 
case,  there  is  a  lien  which  is  insisted  upon  by  the  creditor  and  his 
only  error  is  in  making  an  excessive  demand  which  he  honestly  be- 
lieves to  be  correct,  the  fact  that  the  demand  is  excessive  does  not 
ordinarily  relieve  the  debtor  from  the  necessity  of  making  a  tender. 
If  the  debtor  desires  to  avail  himself  of  this  honest  mistake  of  the 
creditor,  he  must  make  or  tender  payment  of  the  sum  actually  due, 
and  neither  the  ability,  readiness  or  simple  offer  to  pay  is  a  tender. 
There  must  be  an  actual  production  of  the  money,  unless  such  pro- 
duction be  dispensed  with  by  the  express  declaration  of  the  creditor 
that  he  will  not  accept  it  or  by  some  equivalent  declaration  or  act. 
Thomas  v.  Evans,  10  East,  101 ;  Breed  v.  Hurd,  6  Pick.  356.  See 
Chit.  Con.  (10th  Am.  ed.)  890,  891,  and  cases  cited. 

We  are  of  opinion,  that  there  is  no  evidence  in  this  case  of  any 
declaration  or  conduct  of  the  plaintiff  which  would  excuse  the  de- 
fendant from  making  an  actual  tender.  It  is  true  that  the  bill  recites, 
that  the  plaintiff  refused  to  deliver  up  the  horse  except  upon  the 
payment  of  the  $300.96,  but  it  does  not  appear  that  the  defendant 
ever  desired  or  attempted  to  make,  or  indeed  that  he  ever  was  ready 
to  make,  any  tender  whatever,  or  that  the  plaintiff  ever  had  any 
reason  to  suppose  that  in  any  of  the  interviews  with  the  defendant 
the  latter  was  thinking  of  a  tender,  or  was  prepared  then  and  there 


342  CASS    V.    HIGENBOTHAM.  [cHaP.  I. 

to  make  it  or  to  make  any  exhibition  of  money.  Under  these  circum- 
stances, the  simple  statement  made  bj^  the  plaintiff  at  the  time  the 
horse  was  demanded,  that  he  would  not  deliver  him  up  except  upon 
payment  of  the  whole  sum,  is  not  enough  to  warrant  a  finding,  that 
he  had  dispensed  with  the  right  to  an  exhibition  of  the  money  of  the 
defendant,  or  in  other  words,  that  he  had  waived  the  right  to  a 
formal  and  complete  tender;  and  the  judge  presiding  at  the  trial  was 
right  in  declining  to  instruct  as  to  the  law  of  tender. 

The  case  is  clearly  distinguishable  from  Hamilton  v.  McLaughlin, 
145  Mass.  20,  upon  which  the  defendant  relies.  There  being  no  ten- 
der and  no  lawful  excuse  for  not  making  one,  there  was  no  error  in 
instructing  the  jury  that  in  this  case  the  lien  was  not  lost  by  the  ex- 
cessive demand  made  by  the  plaintiff  in  good  faith.  Kerf  or  d  v.  Mon- 
del,  5  H.  &  N.  931 ;  Alderson,  B.,  in  Jones  v.  Tarleton,  9  M.  &  W.  675; 
Jones,  Liens,  §§  1025,  1026,  and  cases  therein  cited.  See  also  Fowler 
V.  Parsons,  143  Mass.  401. 


CASS   V.   HIGENBOTHAM. 

100  N.Y.  248.     1885. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  first  judicial  department,  entered  upon  an  order  made 
June  30,  1882,  which  affiimed  a  judgment  in  favor  of  plaintiff, 
entered  upon  a  verdict  directed  by  the  court.  (Reported  below, 
27  Hun,  406.) 

This  action  was  brought  upon  a  promissory  note,  for  the  sum  of 
$350.  The  note  was  admitted  by  the  answer,  but  it  alleged,  by  way 
of  defense,  that  the  amount  of  the  note  with  interest  and  costs  had 
been  tendered  to  the  plaintiff  after  suit  brought;  and,  by  way  of 
counter-claim,  that  certain  diamonds  had  been  pledged  by  the  de- 
fendant to  the  plaintiff ,  as  collateral  to  the  pajTnent  of  the  note,  and 
that  on  the  20th  of  January,  1880,  after  the  action  was  commenced, 
the  defendant  had  tendered  to  the  plaintiff  the  full  amount  due  on 
the  note  with  interest  and  costs  and  demanded  a  return  of  the  dia- 
monds; that  the  plaintiff  refused  to  accept  the  tender  and  return  the 
diamonds,  but  had  converted  them  to  his  own  use,  to  the  defendant's 
damage,  $1000,  for  which  judgment  was  demanded.  The  plaintiff 
replied  admitting  the  making  of  the  pledge,  and  setting  up  that 
before  the  offer  of  pajTnent  and  demand  of  the  return  of  the  dia- 
monds, an  action  had  been  commenced  against  him  by  a  third  party, 
the  wife  of  the  defendant,  for  a  portion  of  the  diamonds,  claiming 
them  as  her  property;  that  the  defendant  in  this  action  was  notified 
of  that  action  and  had  become  a  party  thereto,  and  that  the  plaintiff, 
at  the  time  of  the  alleged  tender,  had  offered  to  return  to  the  defend- 


SECT.  II.]  CASS    V.    HIGENBOTHAM.  343 

ant  the  jewelry  for  which  suit  had  not  been  brought,  upon  pajnnent 
of  the  note,  but  defendant  had  refused  to  accept  such  portion,  and  to 
make  pajinent.  The  facts  set  forth  in  the  answer  and  I'eply  were 
sufficiently  proved  on  the  trial,  and  it  was  proved  that  the  action 
brought  by  the  wife  of  defendant  for  a  portion  of  the  diamonds,  to 
which  both  plaintiff  and  defendant  in  this  action  are  parties,  is  still 
pending  undetermined. 

Upon  this  state  of  facts  the  court  below  directed  a  verdict  for  the 
plaintiff  for  the  amount  of  the  note,  to  which  defendant's  counsel 
duly  excepted. 

Miller,  J.  It  only  remains  to  be  considered  whether  the  con- 
ceded facts  in  the  pleadings  and  the  proof  upon  the  trial  show  a  con- 
version of  the  property.  Unless  the  refusal  to  return  the  property 
was  justified  there  was  clearly  a  conversion  of  the  same  by  the  plain- 
tiff, and  the  defendant  had  a  right  of  action  for  the  recovery  of  the 
value  thereof  or  of  the  property  itseff,  or  to  interpose  the  defense  set 
up  by  him  as  a  counter-claim  to  the  plaintiff's  demand.  We  are 
unable  to  discover  any  ground  upon  which  the  plaintiff  could  estab- 
lish a  right  to  retain  the  property  after  a  demand,  if  the  defendant 
was  entitled  to  the  same  as  the  owner  thereof.  The  fact  that  a  por- 
tion of  the  property  was  claimed  by  another  person,  and  that  a  suit 
had  been  brought  for  a  recover^'  thereof,  and  that  the  defendant  had 
been  made  a  party  defendant  in  said  action,  furnishes  no  justification 
for  the  refusal.  If  the  defendant  was  the  owner  of  the  property  he 
had  a  right  to  it,  and  the  plaintiff  was  not  justified  in  refusmg  to 
comply  with  his  demand  for  the  reason  that  it  was  claimed  by,  and  a 
suit  had  been  brought  for  the  recoveiy  thereof  by  a  third  person.  If 
he  unlawfully  refused  to  surrender  the  goods  to  the  true  owner,  when 
demanded,  he  must  abide  the  consecjuences  of  his  own  act.  So  long 
as  the  plaintiff  retained  possession  without  right  he  was  liable  to  the 
true  owner  for  the  same  or  the  value  thereof.  A  delivery  to  the  true 
owner  would  have  been  an  entire  protection  to  the  plaintiff  and  a 
com.plete  defense  to  the  action  brought  against  him. 

The  plaintiff  as  bailee  had  no  right  to  deny  the  title  of  the  defend- 
ant as  bailor,  if  he,  the  bailor,  was  the  true  owner  of  the  property.  If 
there  were  conflicting  claims  to  the  same,  the  plaintiff  had  a  complete 
remedy  by  bringing  an  action  in  the  nature  of  a  bill  of  interpleader, 
making  the  claimants  parties  thereto,  and  in  that  form  of  an  action 
it  could  be  determined  who  was  the  true  owner  of  the  property.  In 
that  way  he  could  have  avoided  all  risk  or  hazard.  Having  thus 
failed  to  assert  his  rights,  he  is  in  no  position  to  claim  that  the  action 
brought  against  him  bars  the  right  of  the  defendant  to  counter-claim 
his  demand  in  this  action.  Welch  v.  Sage,  47  N.Y.  143. 

The  action  brought  by  the  wife  of  the  defendant  and  to  which  the 
defendant  was  made  a  party  was  no  protection  to  the  defendant.  She 
had  a  right  to  discontinue  it  at  any  time.   If  determined  adversely 


344  CASS    V.    HIGENBOTHAM.  [CHAP.  L 

to  her,  defendant  was  without  any  relief  whatever  in  that  action.  He 
would  still  be  left  to  an  action  against  respondent  to  recover  the 
property  or  the  value  thereof.  The  controversy  might  thus  be  ex- 
tended beyond  reasonable  limits  to  the  defendant's  injurj^  if  he  was 
the  true  owner,  and  possibly  to  his  eventual  loss  by  the  long  delay. 
The  pendency  of  this  action  was  clearly  no  answer  to  the  defense 
interposed  by  the  defendant.  By  a  bill  of  interpleader  the  whole 
matter  could  have  been  disposed  of  in  a  single  action. 

Note.  —  In  McCalla  v.  Clark,  55  Ga.  53,  the  pledgor  tendered  the 
amount  of  the  debt,  long  after  the  maturity  of  the  debt.  The  pledgee 
refused  to  deliver  the  pledged  property,  claiming  that  the  pledgor 
had  forfeited  his  interest.  Subsequently,  on  the  same  day,  after 
consultation  with  counsel,  the  pledgee  offered  to  return  the  property 
if  the  pledgor  would  pay  him  the  amount  due  on  the  note,  together 
with  the  amount  which  he  had  been  required  to  expend  to  preserve 
the  pledged  property.  The  trial  court  charged  the  jury  that  the 
refusal  of  the  defendant  to  deliver  the  stock  upon  the  tender  being 
made  as  above  stated,  claiming  the  same  to  have  become  his  indi- 
vidual property,  would  constitute  a  conversion;  but  that  the  plaintiff 
still  could  not  recover  if  the  defendant  offered  subsequently,  before 
any  change  in  the  condition  of  the  parties  or  in  the  value  of  the 
stock,  to  return  the  same  on  payment  of  the  amount  loaned  and  that 
paid  on  account  of  assessments,  with  interest. 

This  charge  was  approved  by  the  appellate  court. 


SECT.  III.]  McPHETERS   V,    PAGE.  345 

SECTION  3. 
ALTERING  THE  CONDITION  OF  THE  CHATTEL. 


In  1  Comyns's  Digest,  221  (action  upon  the  case  upon  trover),  it  is 
said:  "If  a  man  delivers  the  oats  of  another  to  B  to  be  made  oat- 
meal, and  the  owner  afterwards  prohibits  him,  but  yet  B  makes  the 
oat-meal,  this  is  a  conversion." 

Note.  —  In  Hollins  v.  Faivler,  L.  R.  7  H.  L.  757,  768,  Mr.  Justice 
Blackburn  commented  on  this  passage  as  follows:  "To  this  every 
one  would  agree;  but  suppose  the  miller  had  honestty  ground  the 
oats  and  delivered  the  meal  to  the  person  who  brought  the  oats  to 
him  before  he  even  heard  of  the  true  owner.  How  would  the  law  be 
then?  Or  suppose  the  plaintiffs  in  the  case  at  your  Lordships'  Bar 
had,  for  some  reason,  brought  the  action  against  Micholls's  men  who 
assisted  in  turning  this  cotton  into  twist?  []\Iicholls,  cotton  spinners, 
had  purchased  cotton  belonging  to  the  plaintiffs  from  one  who  had 
no  authority  to  sell  it.]  ...  I  feel  that  it  would  be  hard  on  them  to 
hold  them  liable.  If  ever  such  a  question  comes  before  me,  I  will 
endeavour  to  answer  it." 


RICHARDSON  v.  ATKINSON. 

1  Strange,  576.     1723. 

They  held  that  the  drawing  out  part  of  the  vessel,  and  filHng  it 
up  with  water,  was  a  conversion  of  all  the  liquor,  and  the  jury  gave 
damages  as  to  the  whole. 


McPHETERS  v.  PAGE. 

83  Me.  234.     1891. 

Foster,  J.  Trover  to  recover  the  value  of  one  carcass  and  two 
saddles  of  deer. 

It  is  admitted  that  the  deer  were  lawfully  killed  by  the  plaintiffs 
and  that  they  owned  the  carcass  and  saddles  for  which  this  suit  is 
brought. 

The  only  question  involved  is  whether  there  has  been  a  conversion 
of  the  property  by  the  defendant. 

The  carcass  and  saddles  were,  during  open  season,  put  on  board 


346  McPHETERS    V.    PAGE.  [cHAP.  I. 

the  cars  to  be  transported  to  Boston  for  sale.  Upon  their  arrival  at 
Bangor,  thej^  were  seized  by  a  constable  and  two  police  officers  for 
some  supposed  violation  of  law  on  the  part  of  the  plaintiffs,  in  at- 
tempting to  transport  them  out  of  the  state.  They  were  taken  and 
carried  by  these  officers  to  the  defendant's  meat  market  in  the  city, 
and  there  left  with  him.  He  knew  the  officers'  possession  came  by 
seizure.  The  officers  had  no  precept  and  procured  none  either  against 
the  property  or  the  plaintiffs.  They  were  not  justified  in  seizing 
them,  or  m  afterwards  doing  what  they  did  with  them.  Nor  have  we 
any  doubt  that  the  acts  of  the  defendant  with  reference  to  the 
property  in  question  amounted  to  a  conversion.  The  evidence  is 
uncontradicted  that  he  skinned  the  carcass  and  saddles,  cut  them 
into  steaks  and  roasts,  let  one  of  the  officers  "have  paper  to  do  the 
pieces  up  to  distribute  them  round  to  his  friends,"  and  sent  a  few 
of  the  orders  out  with  his  own  team.  This  he  admits.  He  used  none 
of  the  meat  himself;  neither  was  any  of  the  meat  sold. 

The  defendant  sets  up  no  justification  by  his  pleading.  It  would 
not  avail  him  were  he  to  do  so  with  the  facts  before  us.  Notwith- 
standing he  may  have  acted  as  the  agent  or  servant  of  the  officers  in 
what  he  did,  it  furnishes  him  no  legal  justification.  "  It  is  no  defense 
to  an  action  of  trover  that  the  defendant  acted  as  the  agent  of  an- 
other. If  the  principal  is  a  wrong-doer,  the  agent  is  a  wrong-doer 
also."  Kimhall  v.  Billings,  55  Maine,  147,  151. 

It  is  established  as  elementary  law  by  well-settled  principles,  and 
a  long  hne  of  decisions,  that  any  distinct  act  of  dominion  wrongfully 
exerted  over  property  in  denial  of  the  owner's  right,  or  inconsistent 
with  it,  amounts  to  a  conversion.  It  is  not  necessary  to  a  conversion 
that  it  be  shown  that  the  wrong-doer  has  apphed  it  to  his  own  use. 
If  he  has  exercised  a  dominion  over  it  in  exclusion,  or  in  defiance  of, 
or  inconsistent  with,  the  owner's  right,  that  in  law  is  a  conversion, 
whether  it  be  for  his  own  or  another  person's  use.  Coolej^  on  Torts, 
448;  Webber  v.  Davis,  44  Maine,  147,  152;  MilW  v.  Baker,  1  Met.  27; 
Fernald  v.  Chase,  37  Maine,  289.  "He  who  interferes  with  my  goods^ 
and  without  any  delivery  by  me,  and  without  my  consent,  under 
takes  to  dispose  of  them,  as  having  the  property,  general  or  special, 
does  it  at  his  peril  to  answer  me  the  value  in  trespass  or  trover." 
Gihbs  V.  Chase,  10  Mass.  125,  128. 

In  this  case  the  defendant  was  more  than  a  mere  naked  bailee.  He 
exercised  a  dominion  over  the  property  destructive  of  it,  and  incon- 
sistent with  the  plaintiffs'  ownership.  The  fact  that  he  was  the  serv- 
ant of  othei-s  who  were  themselves  wrong-doers,  and  acted  under 
their  authority,  can  not  avail  him  though  he  may  have  been  ignorant 
of  their  want  of  title  to  the  property  in  question.  Kimball  v.  Bil- 
lings, supra;  Coles  v.  Clark,  3  Cush.  399,  and  cases  there  cited. 
Hoffman  v.  Carow,  22  Wend.  285;  Gilmore  v.  Newton,  9  AUen,  171; 
Freeman  v.  Underwood,  66  Maine,  229,  233. 


SECT.  III.]  SIMMONS    V.    LILLYSTONE.  347 

The  stipulation  of  parties  has  settled  the  amount  of  damages  to  be 
recovered. 

Judgment  for  the  plaintiffs  for  $43.73,  with 
interest  thereon  from  the  date  of  the  writ. 


MULGRAVE  v.   OGDEN. 

Croke,  Elizabeth,  219.     1591. 

Action  sur  trover  of  twenty  barrels  of  butter;  and  counts  that  he 
tam  negligenter  custodovit  that  they  became  of  little  value.  Upon  this 
it  was  demurred,  and  held  by  all  the  justices,  that  no  action  upon 
the  case  lieth  in  this  case;  for  no  law  compelleth  him  that  finds  a 
thing  to  keep  it  safely;  as  if  a  man  finds  a  garment,  and  suffers  it  to 
be  motheaten;  or  if  one  finds  a  horse  and  giveth  it  no  sustenance;  but 
if  a  man  find  a  thing  and  useth  it,  he  is  answerable,  for  it  is  conver- 
sion; so  if  he  of  purpose  misuseth  it,  as  if  one  finds  paper  and  puts  it 
into  the  water,  etc. ;  but  for  neghgent  keeping  no  law  punisheth  him. 


SIMMONS   V.   LILLYSTONE. 

8  Exch.  431.     1853. 

The  second  count  was  m  trover  for  the  conversion  of  pieces  of 
timber.  Certain  pieces  of  timber  belonging  to  the  plaintiff  were  on 
the  defendant's  land,  embedded  in  the  soil.  The  defendant  directed 
his  workmen  to  dig  a  saw-pit  in  his  land,  and  in  so  doing  they  cut 
through  the  timber,  leaving  the  pieces  there,  and  part  of  them  were 
afterwards  carried  away  by  the  tide  of  the  river,  which  at  high  water 
flowed  over  the  land,  the  other  part  remaining  embedded  in  the  soil. 

Parke,  B.  The  next  question,  which  relates  to  the  count  in  trover, 
is,  whether  there  was  any  evidence  of  a  conversion.  Now  the  evi- 
dence was,  that  the  pieces  of  timber  were  cut  in  two  by  the  defend- 
ant ;  that  they  were  left  embedded  in  the  soil  —  not  applied  to  the 
defendant's  own  use;  —  and  that  part  of  them  were  carried  away  by 
the  tide.  Without  adverting  to  the  plea  of  justification,  we  are  all  of 
opinion  that  there  was  no  sufficient  evidence  of  a  conversion  to 
entitle  the  plaintiff  to  a  verdict  on  the  plea  of  not  guilty.  In  order  to 
constitute  a  conversion,  there  must  be  an  intention  of  the  defendant 
to  take  to  himself  the  property  in  the  goods,  or  to  deprive  the  plain- 
tiff of  it.  If  the  entire  article  is  destroyed,  as,  for  instance,  by  burning 
it,  that  would  be  a  taking  of  the  property  from  the  plaintiff  and 
depriving  him  of  it,  although  the  defendant  might  not  be  considered 
as  appropriating  it  to  his  own  use.  In  this  case,  nothing  is  done  but 


348  SIMMONS    V.    LILLYSTONE.  |cHAP.  I. 

cutting  the  timber,  and,  by  accident,  it  is  washed  away  by  the  river 
—  not  puiposel}^  thrown  by  the  defendant  to  be  washed  away;  — 
consequently,  we  think  that  does  not  amount  to  a  conversion.  As- 
suming that  it  was  prima  facie  a  conversion,  then  the  question  would 
arise  whether  that  conversion  was  not  excused  by  the  right  which  the 
defendant  had  to  make  the  sawpit,  and  to  cut  the  timber  in  making 
it,  if  he  was  not  able  to  do  it  in  any  other  way.  But,  without  deciding 
that,  we  think  that  there  was  no  evidence  to  warrant  the  jurj'  in 
finding  that  this  timber  was  converted  by  the  defendant  to  his  own 
use,  that  is,  either  by  taking  the  whole  property  to  himseK,  or  assert- 
ing title  in  another,  or  depriving  the  plaintiff  of  the  property.  None 
of  those  alternatives  are  made  out  by  the  evidence,  and  consequently 
there  ought  to  be  a  verdict  for  the  defendant  on  the  plea  of  not 
guilty  to  the  count  in  trover. 

Note.  —  Philpott  v.  Kelley,  3  Ad.  &  E.  106.  The  defendant  had  a 
pipe  of  wine  belonging  to  the  defendant.  He  bottled  it,  and  this  act 
was  held  not  to  be  a  conversion.  Littledale,  J.,  said  (p.  114)  that 
it  was  not  a  conversion  "if  done  by  the  direction  of  the  party  deposit- 
ing, or  if  done  for  the  best,  with  a  view  to  preservation." 


SECT.  IV.]  MULLINER   V.    FLORENCE.  349 


SECTION  4. 

DISPOSING  OF  THE  CHATTEL. 

A.  Sale,  or  Pledge,  by  a  Bailee. 


STEVENS  V.   EAMES. 

22  N.H.  568.      1851. 

Certain  property  was  bailed  to  the  defendant,  and  he  mortgaged 
it,  with  other  property,  to  secure  his  own  debt. 

Eastman,  J.  There  is  abundant  evidence  showing  a  conversion 
by  Eames.  An  abuse  of  possession,  originally  legal,  or  a  breach  of 
trust  under  which  property  is  placed  in  a  defendant's  hands,  by 
disposing  of  it,  is  a  conversion. 

Note.  —  In  Haas  v.  Damon,  9  Iowa,  589,  the  plaintiff  had  bailed 
property  to  the  defendant  to  be  sold;  the  defendant  exchanged  it  for 
other  property;  and  the  court  characterized  this  as  a  conversion. 
Similarly,  in  Boyce  v.  Brockway,  31  N.Y.  490,  where  an  agent  sold 
the  property,  after  the  lapse  of  the  time  within  which  he  was  author- 
ized to  sell.  See  the  discussion  of  this  matter  in  Laverty  v.  Snethen, 
68  N.Y.  522,  526,  infra. 


MULLINER  V.  FLORENCE. 

L.  R.  3  Q.  B.  D.     484. 

Action  for  the  detention  and  conversion  of  horses,  carriages,  and 
harness. 

At  the  trial  at  the  Warwickshire  Summer  Assizes,  1877,  before 
Pollock,  B.,  the  following  facts  were  given  in  evidence.  The  defend- 
ant kept  an  inn  at  Coventry,  and  at  the  end  of  September,  1876,  one 
Bennett  came  to  the  defendant's  inn  and  stayed  there  as  a  guest  until 
the  middle  of  January,  1877,  when  he  quitted  the  inn.  Bennett  was 
received  by  the  defendant  as  an  ordinary  guest,  and  at  the  time  of 
his  departure  from  the  inn  he  owed  the  defendant  109/.  for  lodging, 
food,  and  entertainment.  In  November,  1876,  a  pair  of  horses, 
waggonette,  and  harness  came  to  the  defendant's  inn  for  Bennett; 
he  told  the  defendant  that  he  had  bought  them  from  the  plaintiff  who 
lived  at  Leamington.  The  horses,  waggonette,  and  harness  were  not 


350  MULLINER  V.    FLORENCE.  I  CHAP.  L 

taken  in  at  livery,  but  were  received  by  the  defendant  as  a  part  of 
the  property  of  his  guest  Bennett,  At  the  time  when  the  latter 
quitted  the  inn,  he  was  in  debt  to  the  defendant  for  the  keep  of  these 
horses,  and  the  defendant  claimed  on  this  account  from  him  221.  10s. 
Bennett  left  the  horses,  waggonette,  and  harness  behind  him  at  the 
defendant's  inn.  It  was  afterwards  ascertained  that  Bennett  was  a 
swindler,  and  that  he  had  bought  the  horses  from  the  plaintiff  upon 
the  terms  that  if  they  should  not  be  paid  for  they  should  be  returned 
to  him  free  of  expense.  Bennett  did  not  pay  the  price  for  the  horses. 
The  plaintiff  demanded  from  the  defendant  possession  of  the  horses, 
waggonette,  and  harness,  and  tendered  to  him  a  sum  of  20L  for  the 
keep  of  the  horses;  but  the  defendant  refused  to  give  up  the  horses, 
waggonette,  and  harness.  The  defendant  sold  the  horses  by  auction 
for  73?.,  but  he  retained  possession  of  the  waggonette  and  harness. 
Bennett  was  afterwards  convicted  of  fraud,  and  sentenced  to  penal 
servitude.  The  defendant  claimed  to  keep  the  proceeds  of  the  sale, 
and  also  to  retain  the  waggonette  and  harness,  on  account  of  the 
sums  of  109L  and  221.  10s. 

Upon  these  facts  the  learned  judge  directed  judgment  to  be  entered 
for  the  defendant. 

Bramwell,  L.J.  On  the  question  whether  the  sale  was  wrongful 
I  think  the  learned  judge  was  wrong.  The  defendant,  who  had  only 
a  lien  on  the  horses,  was  not  justified  in  selling  them,  and  he  has 
therefore  been  guilty  of  a  conversion,  and  that  enables  the  plaintiff 
to  maintain  this  action  for  the  proceeds  of  the  sale.  The  very  notion 
of  a  lien  is,  that  if  the  person  who  is  entitled  to  the  lien,  for  his  own 
benefit  parts  with  the  chattel  over  which  he  claims  to  exercise  it,  he 
is  guilty  of  a  tortious  act.  He  must  not  dispose  of  the  chattel  so  as 
to  give  some  one  else  a  right  of  possession  as  against  himself.  The 
lien  is  the  right  of  the  creditor  to  retain  the  goods  until  the  debt  is 
paid.  It  is  quite  clear  that  the  defendant  could  not  use  the  horses, 
yet  it  is  suggested  that  he  can  sell  them  and  confer  a  title  upon  an- 
other person.  Several  cases  were  cited,  but  none  of  them  are  incon- 
sistent with  the  present.  Those  mainly  relied  on  were  Donald  v.  Suck- 
ling, Law  Rep.  1  Q.  B.  585  and  Johnson  v.  Stear,  15  C.  B.  (N.S.) 
330;  33  L.  J.  (C  P.)  130.  In  the  latter  case  it  was  no  doubt  held  that 
the  sale  by  the  pledgee  of  an  article  pledged  to  him  was  tortious,  and 
that  the  action  could  be  maintained.  But  looking  at  the  substance 
of  the  thing,  and  at  the  decision  of  HaUiday  v.  Holgate,  Law  Rep, 
3  Ex.  299,  in  all  these  cases  the  courts  held  that  although  the  pledgee 
in  repledging  the  article  had  exceeded  what  he  had  a  right  to  do,  yet 
inasmuch  as  there  remained  in  the  pledgee  an  interest,  not  put  an 
end  to  by  the  unauthorized  pledge,  he  could  transfer  the  pledge  to 
another  person.  In  Johnson  v.  Stear  it  certainly  was  held  to  be  a 
tortious  conversion.  In  the  other  two  cases  it  was  held  not  to  be  so. 
What  in  substance  those  cases  decided  was,  that  as  the  interest  un- 


SECT.  IV.]  McCOMBIE    V.    DAVIES.  351 

der  the  original  pledge  was  not  determined,  the  immediate  right  to 
the  possession  of  the  chattels  was  not  re-vested  in  the  pledgor  so  as 
to  give  him  a  right  of  action.  Those  cases,  however,  were  cases  be- 
tween the  pledgor  and  the  pledgee,  and  have  nothing  whatever  to 
do  with  the  present  case.  The  interest  of  the  pledgee  there  could  be 
assigned,  but  here  the  parting  with  the  chattels  subject  to  the  lien 
destroyed  it. 


McCOMBIE  V.  DAVIES. 

7  East,  5.     1805. 

This  action  of  trover  for  tobacco  having  gone  to  a  second  trialj 
in  consequence  of  the  opinion  of  the  court  delivered  in  Trinity  term 
last,  when  it  was  considered  that  the  defendant's  taking  an  assign- 
ment of  the  tobacco  in  the  King's  warehouse  by  way  of  pledge  from 
one  Coddan,  a  broker,  who  had  purchased  it  there  in  his  own  name 
for  his  principal,  the  plaintiff  (after  which  assignment  the  tobacco 
stood  in  the  defendant's  name  in  the  warehouse,  and  could  only  be 
taken  out  by  his  authority),  and  the  defendant's  refusing  to  deliver 
it  to  the  plaintiff  after  notice  and  demand  by  him,  amounted  to  a 
conversion.  The  defence  set  up  at  the  second  trial  was,  that  the 
plaintiff  being  indebted  to  Coddan  his  broker  in  301.  on  the  balance 
of  his  account,  and  he  ha\'ing  a  lien  upon  the  tobacco  to  that  amount 
while  it  continued  in  his  name  and  possession,  the  defendant  who 
claimed  by  assignment  from  Coddan  for  a  valuable  consideration 
stood  in  his  place  and  was  entitled  to  retain  the  tobacco  for  that  sum; 
and  therefore  that  the  plaintiff  not  having  tendered  the  30Z.  ought  to 
be  nonsuited.  Lord  Ellenborough,  C.J.,  however,  being  of  opinion 
that  the  lien  was  personal,  and  could  not  be  transferred  by  the  tor- 
tious act  of  the  broker  pledging  the  goods  of  his  principal,  the  plain- 
tiff recovered  a  verdict  for  the  value  of  the  tobacco. 

The  Solicitor-General  now  moved  to  set  aside  the  verdict,  and 
either  to  enter  a  nonsuit  or  have  a  new  trial;  upon  the  ground  that 
the  defendant  who  stood  in  the  place  of  Coddan,  and  was  entitled 
to  avail  himself  of  all  the  rights  which  Coddan  had  against  his  prin- 
cipal, could  not  have  the  goods  taken  out  of  his  hands  by  the  princi- 
pal without  receiving  the  amount  of  Coddan's  claim  upon  them. 
And  in  answer  to  the  case  of  Daubigny  v.  Duval,  5  Term  Rep.  604 
(which  was  suggested  as  establishing  a  contrary  doctrine),  he  ob- 
served that  Lord  Kenyon  was  of  opinion  at  the  trial,  that  the  prin- 
cipal could  not  recover  his  goods  from  the  pawnee,  to  whom  they 
had  been  pledged  by  the  factor,  without  tendering  to  the  pawnee  the 
sum  advanced  by  him,  which  was  within  the  amount  of  the  factor  s 
lien  upon  the  goods  for  his  general  balancie;  and  that  his  lordship 


352  McCOMBIE   V.    DAVIES.  [CHAP.  L 

seemed  to  retain  that  opinion  when  the  case  was  moved  in  court, 
though  the  rest  of  the  Bench  differed  from  him.  But 

Lord  Ellenborough,  C.J.,  said,  that  nothing  could  be  clearer 
than  that  liens  were  personal,  and  could  not  be  transferred  to  third 
persons  by  any  tortious  pledge  of  the  principal's  goods.  That  whether 
or  not  a  lien  might  follow  goods  in  the  hands  of  a  third  person  to 
whom  it  was  delivered  over  by  the  party  having  the  lien,  purporting 
to  transfer  his  right  of  lien  to  the  other,  as  his  servant,  and  in  his 
name,  and  as  a  continuance  in  effect  of  his  own  possession;  yet  it 
was  quite  clear  that  a  lien  could  not  be  transferred  by  the  tortious 
act  of  a  broker  pledging  the  goods  of  his  principal,  which  he  had  no 
authority  to  do.  That  in  Daubigny  v.  Duval,  though  Lord  Kenyon 
was  at  first  of  opinion  that  there  ought  to  have  been  a  tender  to  the 
pawnee  of  the  sum  for  which  the  goods  had  been  pledged  by  the  fac- 
tor, within  the  extent  of  his  lien,  in  order  to  entitle  the  plaintiff  to 
recover;  yet  after  the  rest  of  the  court  had  expressed  a  different 
opinion,  on  which  he  at  that  time  only  stated  his  doubts,  he  appears 
in  the  subsequent  case  of  Sweet  and  another,  Assignees  of  Gard,  v. 
Pym,  1  East,  4,  to  have  fully  acceded  to  their  opinion;  for  he  there 
states  that  "the  right  of  lien  has  never  been  carried  further  than 
while  the  goods  continue  in  the  possession  of  the  party  claiming  it." 
And  afterwards  he  says,  "In  the  case  of  Kinloch  v.  Craig,  3  Term 
Rep.  119,  afterwards  in  Dom.  Proc.  ib.  786,  where  I  had  the  mis- 
fortune to  differ  from  my  brethren,  it  was  strongly  insisted  that 
the  right  of  lien  extended  beyond  the  time  of  actual  possession :  but 
the  contrary  was  ruled  by  this  court,  and  afterwards  in  the  House  of 
Lords." 

His  lordship  then,  after  consulting  with  the  other  judges,  declared 
that  the  rest  of  the  court  coincided  with  him  in  opinion,  that  no  lien 
was  transferred  by  the  pledge  of  the  broker  in  this  case:  and  added, 
that  he  would  have  it  fully  understood  that  his  observations  were 
applied  to  a  tortious  transfer  of  the  goods  of  the  principal  by  the 
broker  undertaking  to  pledge  them  as  his  own;  and  not  to  the  case 
of  one  who,  intending  to  give  a  security  to  another  to  the  extent  of 
his  lien,  delivers  over  the  actual  possession  of  goods,  on  which  he 
has  the  lien,  to  that  other,  with  notice  of  his  lien,  and  appoints  that 
other  as  his  servant  to  keep  possession  of  the  goods  for  him;  in  which 
case  he  might  preserve  the  lien. 

Per  CuRiAivi,  Rule  refused. 

Note.  —  See  Stat.  52  &  53  Vict.,  c.  45.  There  are  Factors  Acts 
in  several  of  the  United  States. 


SECT.  IV,]  DOUGLAS    V.    CARPENTER.  353 

DOUGL.\S  V,  CARPENTER. 

17  N.Y.  App.  Div.  329.     1897. 

Williams,  J.  The  action  was  brought  by  a  firm  of  bankers  and 
stockbrokers,  members  of  the  Stock  Exchange,  in  New  York  City, 
to  recover  the  balance  of  an  account  growing  out  of  speculative 
stock,  bond  and  grain  operations  conducted  by  plaintiffs  for  defend- 
ant on  margin.  The  account  began  October  11,  1888,  and  continued 
until  December  1, 1893.  The  defendant,  among  other  things,  claimed 
that  there  had  been  conversion  by  the  plaintiffs  of  certam  securities 
belonging  to  the  defendant  by  their  having  pledged  the  same,  and  that 
the  defendant  was  entitled  to  damages  for  such  conversion.  There 
were  other  questions  in  the  case,  some  of  which  have  been  argued 
before  this  court,  but  this  is  the  important  question  and  the  only 
one  which  we  think  it  necessary  to  determine.  We  need  not  detail 
the  facts  to  show  how  this  question  Vv^as  raised.  There  is  no  dispute 
but  that  it  was  in  the  case,  was  fairly  raised,  and  that  the  referee 
decided  it  in  favor  of  the  plaintiffs,  and  if  he  was  wrong  the  judgment 
must  be  reversed.  The  question  may  be  briefly  stated  as  follows: 
Were  the  plaintiffs  gudty  of  a  conversion  of  the  defendant's  securities 
by  pledging  them  for  the  benefit  of  the  plaintiffs'  own  business, 
mingling  them  with  other  secmities,  and  obtaining  loans  thereon  for 
a  greater  amount  than  the  indebtechiess  of  the  defendant  to  the  plain- 
tiffs on  account  thereof,  and  without  retaining  in  the  plaintiffs'  pos- 
session other  securities  of  a  hke  land  and  amount? 

There  are  some  things  about  wliich  there  is  no  dispute.  The  rela- 
tions of  pledgor  and  pledgee  existed  between  the  defendant  and  the 
plaintiffs.  The  securities  were  the  property  of  the  defendant,  and 
the  plaintiffs  had  a  lien  thereon  for  the  amount  of  then-  advances. 
The  unauthorized  sale  of  the  securities  by  the  plaintiffs  would  have 
been  a  conversion  thereof.  An  unauthorized  loan  of  the  securities 
by  the  plaintiffs,  with  the  understanding  that  the  pei^sons  borrow- 
ing them  might  sell  or  dispose  of  them  according  to  their  pleasure, 
would  have  been  a  conversion  thereof.  Such  sale  or  loan  would  not 
have  been  consistent  with  the  general  ownership  and  ultimate  rights 
of  the  defendant.  No  custom,  however  general  or  long  continued, 
could  make  such  sale  or  loan  legal,  because  it  would  be  inconsistent 
with  the  contract  between  the  parties  and  in  derogation  of  the  prop- 
erty rights  of  the  defendant.  The  defendant  had  the  ownership  of 
the  securities,  but  not  the  right  of  possession.  His  interest  in  the 
property  consisted  in  his  right  of  redemption.  By  pajonent  or  tender 
of  the  indebtedness  the  lien  of  the  plaintiffs  would  have  been  dis- 
charged, and  the  defendant  would  have  become  entitled  to  the  im- 
mediate restoration  of  his  property.  The  plaintiffs  might  take  title 
to  the  securities  in  their  own  name,  and  were  not  bound  to  retain  or 


354  DOUGLAS    V.    CARPENTER.  [cHAP.   I. 

deliver  the  identical  securities  purchased  for  the  defendant.  Their 
duty  was  to  keep  on  hand,  or  under  their  control,  either  the  securi- 
ties of  the  defendant  or  a  like  kind  and  amount  of  securities,  and  to 
have  them  in  such  situation  that  the  defendant,  by  paying  the 
amount  due  by  him  thereon,  could,  at  any  time,  obtain  them.  This 
was  what  the  plaintiffs  agreed  to  do,  and  so  long  as  they  did  this,  the 
fact  that  they  used  the  securities  while  in  their  possession,  awaiting 
redemption  by  the  defendant,  would  not  amount  to  a  conversion 
thereof.  These  principles  are  well  settled  and  are  recognized  by 
both  parties.  See  Markham  v.  Jaudon,  41  N.Y.  235;  Baker  v.  Drake, 
66  id.  522;  Gruman  v.  Smith,  81  id.  28;  Lawrence  v.  Maxwell,  53  id. 
19;  Capron  v.  Thompson,  86  id.  418;  Taussig  v.  Hart,  58  id.  429; 
Caswell  V.  Putnam,  120  id.  153;  Hopper  v.  Sage,  112  id.  535;  Horton 
v.  Morgan,  19  id.  170;  Stewart  v.  Drake,  46  id.  449,  4:53;  Levy  v.  Loeh, 
85  id.  365. 

It  would  seem  that  the  decision  in  Caswell  v.  Putnam  {supra),  that 
the  general  rule  that  a  sale  or  loan  constitutes  a  conversion  of  securi- 
ties, is  to  be  regarded  as  modified  to  the  extent  that  the  sale  or  loan 
of  the  identical  securities  of  the  pledgor  will  not  be  a  conversion, 
provided  the  pledgee  at  all  times  keeps  in  his  possession,  or  under 
his  control,  securities  of  like  kind  and  amount  as  those  sold  or  loaned. 
In  this  case  we  must  consider  that  the  pledges  were  made  by  plain- 
tiffs without  keeping  in  their  possession  securities  of  a  like  kind  and 
amount,  because  the  defendant  offered  to  make  this  proof  and  the 
evidence  was  excluded.  The  pledges  were,  therefore,  made  of  the 
defendant's  securities,  mixed  and  mingled  with  other  securities, 
and  for  amounts  larger  than  the  indebtedness  of  the  defendant  to 
the  plaintiffs,  and  no  other  securities  of  like  kind  and  amount  were 
kept  in  their  place.  The  only  question  is,  therefore,  whether  such 
pledges  were  conversions  of  the  securities,  as  sales  or  loans  of  the 
securities  would  have  been  had  the  transactions  been  such  sales  or 
loans.  It  seems  to  us  that  all  the  reasons  that  operate  to  render  sales 
or  loans  of  the  securities  conversions  are  equally  applicable  to  such 
pledges  as  were  made  by  the  plaintiffs  of  defendant's  securities  in 
this  case.  Any  disposition  of  the  defendant's  securities  by  the  plain- 
tiffs which  would  deprive  him  of  his  right  to  immediate  possession 
thereof,  upon  payment  or  tender  of  the  indebtedness  by  him  to  the 
plaintiffs  on  account  of  such  securities  would  amount  to  a  conversion 
thereof.  A  sale  or  loan  would  do  this,  no  securities  of  a  like  kind  and 
amount  being  kept  in  their  place,  because  the  securities  would  be 
gone  and  could  not  be  delivered  to  the  defendant. 

It  would  not  do  to  say  that  the  plaintiffs  might  go  into  the  market 
and  buy  other  securities  of  a  like  kind  and  amount  on  pajnnent  or 
tender  being  made  by  defendant,  because  the  plaintiffs  might  not 
have  the  funds  to  purchase  the  new  securities,  and  the  only  reliance 
the  defendant  would  have  would  be  the  personal  financial  responsi- 


SECT.  IV.]  DOUGK^    V.    CARPENTER.  355 

bihty  and  ability  of  the  plaintifis,  wnereas  he  had  a  right  to  reiy 
upon  the  securities  themselves,  and  if  they  were  retained  he  could 
get  them,  whether  the  plaintiffs  were  financially  responsible  or 
not. 

As  said  by  Rapallo,  J.,  in  Taussig  v.  Hart,  supra,  430:  "To  allow 
a  broker  to  sell  his  customer's  stock  mthout  authority,  and  speculate 
upon  replacing  it  at  a  lower  price,  would  be  encouraging  speculations 
b}'  agents  at  the  risk  of  their  principals,  totally  inadmissible  under 
familiar  rules.  Should  the  stock  rise  largely  in  price  after  the  broker 
had  thus  divested  himself  of  all  control  over  the  shares  which  he 
had  purchased  on  the  order  of  his  principal,  the  broker  might  be 
unable  to  replace  the  shares,  and  the  principal  would  have  no  remedy 
except  a  personal  claim  against  the  broker.  This  clearly  is  not  what 
is  contemplated  under  an  agreement  to  buy  and  carry  stocks.  The 
customer  does  not  rely  upon  an  engagement  of  the  broker  to  procure 
and  furnish  the  shares  when  required,  but  upon  his  actually  pur- 
chasing and  holding  the  number  of  shares  ordered,  subject  only  to 
the  payment  of  the  purchase  prwe." 

It  is  not  doubted  but  that  the  plaintiffs  might  lawfully  have 
pledged  the  defendant's  securities,  by  themselves,  separate  and  apart 
from  others,  for  an  amount  not  exceeding  the  indebtedness  to  them 
by  the  defendant  thereon.  In  such  case  the  defendant  would  have 
been  protected,  because  he  could  have  gone  to  the  pledgees  and 
have  obtained  the  securities  by  pajonent  or  tender  of  the  amount 
of  his  indebtedness  and  nothing  more  (Chapman  v.  Brooks,  31  N.Y. 
75) ;  but  mingling  them  with  other  securities  and  pledging  them  for 
an  amount  larger  than  the  defendant's  indebtedness  would  have 
placed  them  where  the  defendant  could  not  have  obtained  them  by 
a  pajment  or  tender  of  the  amount  of  his  indebtedness,  and  would 
have  been  illegal  and  unauthorized.  McNeil  v.  Tenth  National  Bank, 
46  N.Y.  325;  Schouler  on  Bailments  [1st  ed.],  201.  It  will  not  do 
to  say  that  plaintiffs  might  be  able  to  get  defendant's  securities  re- 
leased from  the  pledges  made  by  them,  by  paying  up  the  whole  or  a 
part  of  the  amount  for  which  the  pledges  were  made,  and  so  be  able 
to  surrender  them  to  defendant  on  payment  or  tender  of  the  amount 
of  his  indebtedness.  His  doing  this,  like  his  purchasing  other  securi- 
ties in  the  case  of  a  sale  or  loan  already  referred  to,  would  be  depend- 
ent upon  his  having  the  funds  to  pay  the  amounts  for  which  the 
pledges  had  been  made  or  upon  his  ability  to  get  such  securities  re- 
leased, and  the  same  reasoning  is  applicable  to  pledges  as  would 
apply  to  sales  or  loans  under  like  circumstances.  The  referee  based 
his  decision  upon  this  point  upon  the  consideration  that  "all  that 
the  customer  has  a  right  to  require  is  a  delivery  of  his  property  on 
payment  of  the  brokers'  lien  thereon,  and  the  proof  before  me  is  that 
the  plaintiffs  at  all  times  had  control  of  the  stocks  and  bonds  bought 
and  carried  by  them  for  the  defendant,  and  were  at  all  tim.es  able  end 


356  JOHNSON    V.    STEAR.  [CHAP.  I. 

ready  to  make  delivery  of  them  to  the  defendant  on  payment  of  the  bal- 
ance due  on  his  account." 

If  this  statement  were  to  be  regarded  as  absolutely  true,  the  judg- 
ment might  be  sustained  upon  such  facts,  but  it  must  be  remem- 
bered that  the  defendant  offered  to  prove  a  different  state  of  facts. 
The  offer  was  to  prove  that  instead  of  the  securities  being  at  all  times 
under  the  control  of  the  plaintiffs,  so  that  they  were  at  all  times  able 
and  ready  to  deliver  the  same  to  the  defendant  on  pajonent  of  his 
indebtedness,  the  securities  were  mingled  with  other  securities,  and 
were  pledged  to  third  parties  for  amounts  larger  than  the  indebted- 
ness by  defendant  to  the  plaintiffs.  This  evidence  was  excluded. 
If  it  had  been  received  and  relied  on,  it  would  have  appeared  that 
the  control  of  plaintiffs  over  the  securities  and  their  ability  to  deliver 
the  same  to  the  defendant  would  have  rested,  as  we  have  before  sug- 
gested, upon  the  personal  ability  of  plaintiffs  to  discharge  the  amounts 
for  which  the  pledges  were  made  or  otherwise  obtain  possession  of 
the  securities.  If  such  pledges  had  been  made,  and  the  plaintiffs  had 
ibsconded  or  become  entirely  insolvent,  the  defendant  would  not  have 
been  able  to  get  possession  of  his  securities  by  merel}'  paying  the 
indebtedness  thereon  by  himself  to  the  plaintiffs.  We  are  unable  in 
any  view  of  the  case  to  see  how  the  pledges  of  the  defendant's  securi- 
ties could  be  said  to  have  been  legal.  It  seems  to  us  that  they  were 
illegal  and  were  conversions  of  such  securities. 

The  conclusion  we  have  arrived  at  upon  this  point  requires  a  re- 
versal of  the  judgment  and  a  new  trial  of  the  case.  It  is  not  neces- 
sary to  consider  the  other  questions  raised  on  this  appeal.  The  case 
is  here  deteraiined  largely  upon  the  rejection  of  evidence  offered, 
and  when  the  defendant  is  permitted  to  give  such  evidence  as  he  can, 
as  to  the  nature  and  extent  of  the  pledges  alleged  to  have  been  made, 
the  other  questions  arising  in  the  case  may  need  consideration. 

The  judgment  appealed  from  should  be  reversed,  and  a  new  trial 
ordered  before  another  referee,  with  costs  to  appellant  to  abide  event. 

Van  Brunt,  P.J.,  RrMSEY  and  Parker,  JJ.,  concurred;  Pat- 
terson, J.,  concurred  in  result. 

Note.  —  On  the  question  whether  a  pledgee  of  stock  may  prop- 
erly dispose  of  that  stock,  if  he  keep  an  equal  number  of  other  shares 
of  such  stock  under  his  control,  compare  Allen  v.  Dubois,  117  Mich. 
115. 


JOHNSON  V.   STEAR. 

15  C.  B.  N.S.  330.     1863. 

Erle,  C.J.,  now  delivered  the  judgment  of  the  majority  of  the 
court :  — 


SECT.  IV.]  JOHNSON   V.    STEAR.  357 

In  trover  by  the  assignee  under  the  bankruptcy  of  one  Gumming, 
the  facts  were  that  Gumming  had  deposited  brandy  lying  in  a  dock 
with  one  Stear,  by  dehvering  to  him  the  dock-warrant,  and  had 
agreed  that  Stear  might  sell,  if  the  loan  was  not  repaid  on  the  29th 
of  January;  that,  on  the  28th  of  January,  Stear  sold  the  brandy,  and 
on  the  29th  handed  over  the  dock-warrant  to  the  vendees,  who  on 
the  30th  took  actual  possession. 

Upon  these  facts,  the  questions  are,  —  first,  was  there  a  conver- 
sion? and,  if  yes,  —  secondly,  what  is  the  measure  of  damages? 

To  the  first  question  our  answer  is  in  the  affirmative.  The  wrong- 
ful sale  on  the  28th,  followed  on  the  29th  by  the  delivery  of  the 
dock-warrant  in  pursuance  thereof,  was,  we  think,  a  conversion.  The 
defendant  wrongfully  assumed  to  be  owner  in  selling;  and,  although 
the  sale  alone  might  not  be  a  conversion,  yet,  by  delivering  over  the 
dock-warrant  to  the  vendees  in  pursuance  of  such  sale,  he  interfered 
with  the  right  which  Gumming  had  of  taking  possession  on  the  29th 
if  he  repaid  the  loan;  for  v/hich  purpose  the  dock-warrant  would 
have  been  an  important  instrument.  We  decide  for  the  plaintiff  on 
this  ground :  and  it  is  not  necessary  to  consider  the  other  grounds  on 
which  he  refied  to  prove  a  conversion.  Then  the  second  question 
arises. 

The  plaintiff  contends  that  he  is  entitled  to  the  full  value  of  the 
goods  sold  by  the  defendant,  without  anj'  deduction,  on  the  ground 
that  the  interest  of  the  defendant  as  bailee  ceased  when  he  made  a 
wrongful  sale,  and  that  therefore  he  became  liable  to  all  the  damages 
which  a  mere  wrong-doer  who  had  wilfully  appropriated  to  himself 
the  property  of  another  without  any  right  ought  to  pay.  But  we 
are  of  opinion  that  the  plaintiff  is  not  entitled  to  the  full  value  of  the 
goods.  The  deposit  of  the  goods  in  question  with  the  defendant  to 
secure  repajTnent  of  a  loan  to  him  on  a  given  day,  with  a  power  to 
sell  in  case  of  default  on  that  day,  created  an  interest  and  a  right  of 
property  in  the  goods  which  was  more  than  a  mere  Uen,  and  the 
wrongful  act  of  the  pawTiee  did  not  annihilate  the  contract  between 
the  parties  nor  the  interest  of  the  pawnee  in  the  goods  under  that 
contract. 

It  is  clear  that  the  actual  damage  was  merely  nominal.  The  de- 
fendant by  mistake  delivered  over  the  dock-warrant  a  few  hours 
only  before  the  sale  and  delivery  by  him  would  have  been  lawful; 
and  by  such  premature  delivery  the  plaintiff  did  not  lose  anything, 
as  the  bankrupt  had  no  intention  to  redeem  the  pledge  by  paying 
the  loan. 

If  the  plaintiff's  action  had  been  for  breach  of  contract  in  not  keep- 
ing the  pledge  till  the  given  day,  he  would  have  been  entitled  to  be 
compensated  for  the  loss  he  had  really  sustained,  and  no  more:  and 
that  would  be  a  nominal  sum  only.  The  plaintiff's  action  here  is  in 
name  for  the  wrongful  conversion;  but,  in  substance,  it  is  the  same 


358  JOHNSON    V,    STEAR.  [CHAP.  I. 

cause  of  action;  and  the  change  of  the  form  of  pleading  ought  not  in 
reason  to  affect  the  amount  of  compensation  to  be  paid. 

There  is  authority  for  holding,  that,  in  measuring  the  damages  to 
be  paid  to  the  pawnor  by  the  pawnee  for  a  wrongful  conversion  of 
the  pledge,  the  interest  of  the  pawnee  in  the  pledge  ought  to  be  taken 
into  the  account.  On  this  principle  the  damages  were  measured  in 
Chinery  v.  Viall,  5  Hurlst.  &  N.  288.  There,  the  defendant  had  sold 
sheep  to  the  plaintiff;  and,  because  there  was  delay  in  the  pajTuent 
of  the  price  by  the  plaintiff,  the  defendant  resold  the  sheep.  For  this 
wrong  the  court  held  that  trover  lay,  and  that  the  plaintiff  was  en- 
titled to  recover  damages;  but  that,  in  measuring  the  amount  of 
those  damages,  although  the  plaintiff  was  entitled  to  be  indemnified 
against  any  loss  he  had  really  sustained  by  the  resale,  yet  the  de- 
fendant as  an  unpaid  vendor  had  an  interest  in  the  sheep  against  the 
vendee  under  the  contract  of  sale,  and  might  deduct  the  price  due 
to  himself  from  the  plaintiff,  from  the  value  of  the  sheep  at  the  time 
of  the  conversion. 

In  Story  on  Bailments,  §  315,  it  is  said:  "If  the  pawnor,  in  conse- 
quence of  any  default  or  conversion  by  the  pawnee,  has  recovered 
back  the  pawn  or  its  value,  still  the  debt  remains  and  is  recoverable, 
unless  in  such  prior  action  it  has  been  deducted :  and  it  seems  that, 
by  the  common  law,  the  pawnee  in  such  action  for  the  value  has  a  right 
to  have  the  amount  of  his  debt  recouped  in  damages."  For  this  he 
cites  Jarvis  v.  Rogers,  15  Mass.  R.  389.  The  principle  is  also  exem- 
plified in  Brierly  v.  Kendall,  17  Q.B.  937  (E.  C.  L.  R.  vol.  79).  There, 
although  the  form  of  the  security  was  a  mortgage,  and  not  a  pledge; 
and  although  the  action  was  trespass,  and  not  trover;  yet  the  sub- 
stance of  the  transaction  was  in  close  analogy  with  the  present  case. 
There  was  a  loan  by  the  defendant  to  the  plaintiff,  secured  by  a  bill 
of  sale  of  the  plaintiff's  goods,  in  which  was  a  reservation  to  the 
plaintiff  of  a  right  to  the  possession  of  the  goods  tiU  he  should  make 
default  in  some  payment.  Before  any  default,  the  defendant  took 
the  goods  from  the  plaintiff,  and  sold  them.  For  this  wrong  he  was 
Liable  in  trespass:  but  the  measure  of  damages  was  held  to  be,  not 
the  value  of  the  goods,  but  the  loss  which  the  plaintiff  had  really 
sustained  by  being  deprived  of  the  possession.  The  wrongful  act  of 
the  defendant  did  not  annihilate  his  interest  in  the  goods  under  the 
bill  of  sale ;  and  such  interest  was  to  be  considered  in  measuring  the 
extent  of  the  plaintiff's  right  to  damages. 

On  these  authorities  we  hold  that  the  damages  due  to  the  plaintiff 
for  the  wrongful  conversion  of  the  pledge  by  the  defendant,  are  to 
be  measured  by  the  loss  he  has  really  sustained ;  and  that,  in  measur- 
ing those  damages,  the  interest  of  the  defendant  in  the  pledge  at  the 
time  of  the  conversion  is  to  be  taken  into  the  account.  It  follows 
that  the  amount  is  merely  nominal,  and  therefore  that  the  verdict 
for  the  plaintiff  should  stand,  with  damages  40s. 


SECT.  IV.]  JOHNSON    V.    STEAR.  359 

Williams,  J.  I  agree  with  the  rest  of  the  court  that  there  was 
sufficient  proof  of  a  conversion;  for,  although  the  mere  sale  of  the 
goods  (according  to  The  Lancashire  Wagon  Company  v.  Fitzhugh,  6 
Hurlst.  &  N.  502)  would  have  been  insufficient,  yet  I  think  the  hand- 
ing over  of  the  dock-warrant  to  the  vendees  before  the  time  had  ar- 
rived at  which  the  brandies  could  be  properly  sold,  according  to  the 
terms  on  which  they  were  pledged,  constituted  a  conversion,  inas- 
much as  it  was  tantamount  to  a  delivery.  Not  that  the  warrant  is 
to  be  considered  in  the  light  of  a  symbol,  according  to  the  doctrine 
applied  to  cases  of  donations  mortis  causa;  it  is  the  means  of  coming 
at  the  possession  of  a  thing  which  will  not  admit  of  corporal  delivery. 
Ward  V.  Turner,  2  Ves.  sen.  431;  Smith  v.  Smith,  2  Stra.  295. 

But  I  cannot  agree  with  my  Lord  and  my  learned  Brothers  as  to 
the  other  point;  for,  I  think  the  damages  ought  to  stand  for  the  full 
value  of  the  brandies.  The  general  rule  is  indisputable,  that  the 
measure  of  damages  in  trover  is  the  value  of  the  property  at  the 
time  of  the  conversion.  To  this  rule  there  are  admitted  exceptions. 
There  is  the  well-known  case  of  a  redelivery  of  the  goods  before 
action  brought,  which,  though  it  cannot  cure  the  conversion,  yet 
will  go  in  mitigation  of  damages.  Another  exception  is  to  be  found 
in  cases  where  the  plaintiff  has  only  a  partial  interest  in  the  thing 
converted.  Thus,  if  one  of  several  joint-tenants  or  tenants  in  com- 
mon alone  brings  an  action  against  a  stranger,  he  can  recover  only 
the  value  of  his  share.  So,  if  the  plaintiff,  though  solely  entitled  to 
the  possession  of  the  thing  converted,  is  entitled  to  an  interest  lim- 
ited in  duration,  he  can  only  recover  damages  proportionate  to  such 
limited  interest,  in  an  action  against  the  person  entitled  to  the  resi- 
due of  the  property  (though  he  may  recover  the  full  value  in  an 
action  against  a  stranger).  The  case  of  Brierly  v.  Kendall,  which 
my  Lord  has  cited,  is  an  example  of  this  exception.  There,  the  goods 
had  been  assigned  by  the  plaintiff  to  the  defendant  by  a  deed  the 
terms  of  which  operated  as  a  re-demise,  and,  since  the  defendant's 
quasi  estate  in  remainder  was  not  destroyed  or  forfeited  by  his  con- 
version of  the  quasi  particular  estate,  the  plaintiff,  as  owner  of  that 
estate,  was  only  entitled  to  recover  damages  in  proportion  to  the 
value  of  it. 

With  respect,  however,  to  liens,  the  rule,  I  apprehend,  is  well  es- 
tablished, that,  if  a  man  having  a  lien  on  goods  abuses  it  by  wrong- 
fully parting  with  them,  the  lien  is  annihilated,  and  the  owner's  right 
to  possession  revives,  and  he  may  recover  their  value  in  damages  in 
an  action  of  trover.  With  reference  to  this  doctrine,  it  may  be  useful 
to  refer  to  Story  on  Bailments.  In  § 325,  that  writer  says:  "The  doc- 
trine of  the  common  law  now  established  in  England,  after  some 
diversity  of  opinion,  is,  that  a  factor  having  a  lien  on  goods  for  ad- 
vances or  for  a  general  balance,  has  no  right  to  pledge  the  goods, 
and  that,  if  he  does  pledge  them,  he  conveys  no  title  to  the  pledgee. 


360  JOHNSON    V.    STEAR.  [CHAP.  I. 

The  effect  of  this  doctrine  is,  in  England,  to  deny  to  the  pledgee  any 
right  in  such  a  case  to  retain  the  goods  even  for  the  advances  or  bal- 
ance due  to  the  factor.  In  short,  the  transfer  is  deemed  wholly  tor- 
tious; so  that  the  principal  may  sue  for  and  recover  the  pledge,  with- 
out making  any  allowance  or  deduction  whatever  for  the  debts  due 
by  him  to  the  factor."  After  stating  that  the  English  legislature  had 
at  length  interfered,  the  learned  author  continues,  in  §326,  "In 
America,  the  general  doctrine  that  a  factor  cannot  pledge  the  goods 
of  his  principal  has  been  repeatedly  recognised.  But  it  does  not  ap- 
pear as  yet  to  have  been  carried  to  the  extent  of  declaring  the  pledge 
altogether  a  tortious  proceeding,  so  that  the  title  is  not  good  in  the 
pledge  even  to  the  extent  of  the  lien  of  the  factor,  or  so  that  the 
principal  may  maintain  an  action  agamst  the  pledgee  without  dis- 
charging the  lien,  or  at  least  giving  the  pledgee  a  right  to  recover  the 
amount  of  the  lien  in  the  damages.^'  But,  in  the  6th  edition,  by  Mr. 
Bennett,  it  is  added,  "Later  decisions  have,  however,  fully  settled 
the  law,  that  a  pledge  by  a  factor  of  his  principal's  goods  is  wholly 
tortious,  and  the  owner  may  recover  the  whole  value  of  the  pledgee, 
without  any  deduction  or  recoupment  for  his  claim  against  the  factor." 
And  I  may  mention  that  I  have  reason  to  believe  this  rule  as  to  liens 
was  acted  upon  a  few  days  ago  in  the  Court  of  Queen's  Bench,  Sie- 
hel  V.  Springfield,  9  Law  T.  N.S.  325. 

But  it  is  said  that  the  maintenance  of  such  a  rule  in  respect  of 
pledges  is  inconsistent  with  Chinery  v.  Viall,  mentioned  by  my  Lord. 
It  seems  to  me,  however,  that  the  decision  of  that  case  does  not  in- 
terfere with  the  general  rule  as  to  damages  in  trover,  but  only  estab- 
lishes a  further  exception  in  the  peculiar  and  somewhat  anomalous 
case  of  an  unpaid  vendor,  whose  right  in  all  cases  has  been  deemed 
to  exceed  a  Hen:  see  Blackburn  on  Contracts,  p.  320.  I  cannot,  how- 
ever, think  that  this  exception  can  be  properly  extended  to  the  case 
of  a  pledgee.  An  unpaid  vendor  has  rights  independent  of  and  ante- 
cedent to  his  lien  for  the  purchase-money.  But  the  property  of  a 
pledgee  is  a  mere  creature  of  the  transaction  of  bailment;  and,  if 
the  bailment  is  terminated,  must  surely  perish  with  it.  Accordingly, 
it  is  said  in  Story  on  Bailments,  §  327,  "It  has  been  intimated  that 
there  is,  or  may  be,  a  distinction  favourable  to  the  pledgee,  which 
does  not  apply,  or  may  not  apply,  to  a  factor,  since  the  latter  has 
but  a  lien,  whereas  the  former  has  a  special  property  in  the  goods. 
It  is  not  very  easy  to  point  out  any  substantial  distinction  between  the 
case  of  a  pledgee  and  the  case  of  a  factor.  The  latter  holds  the  goods 
of  his  principal  as  a  security  and  pledge  for  his  advances  and  other 
dues.  He  has  a  special  property  in  them,  and  may  maintain  an  ac- 
tion for  any  violation  of  this  possession,  either  by  the  principal  or 
by  a  stranger.  And  he  is  generally  treated,  in  judicial  discussions, 
as  in  the  condition  of  a  pledgee."  Again,  in  §  299.  —  "As  possession 
is  necessary  to  complete  the  title  by  pledge,  so,  by  the  common  law, 


SECT.  IV.]  WHIPPLE    V.    DUTTON.  361 

the  positive  loss  or  the  delivery  back  of  the  possession  of  the  thing 
with  the  consent  of  the  pledgee,  terminates  his  title."  And,  further, 
in  the  same  section, —  "If  the  pledgee  voluntarily, by  his  own  act, 
places  the  pledge  beyond  his  own  power,  as,  by  agreeing  that  it  may 
be  attached  at  the  suit  of  a  third  person,  that  will  amount  to  a 
waiver  of  his  pledge."    See  Whitaker  v.  Sumner,  20  Pick.  R.  399. 

It  should  seem,  then,  that  the  bailment  in  the  present  case  was 
terminated  by  the  sale  before  the  stipulated  time;  and,  consequently, 
that  the  title  of  the  plaintiff  to  the  goods  became  as  free  as  if  the  bail- 
ment had  never  taken  place.  If  he  had  brought  an  action  against  an 
innocent  vendee,  the  passage  I  have  already  cited  from  Story,  §  325, 
demonstrates  that  he  might  have  recovered  the  absolute  value  of 
the  goods  as  damages.  Why  should  he  be  in  a  worse  condition  in 
respect  to  an  action  against  the  pledgee  who  has  violated  the  con- 
tract of  pledge? 

The  true  doctrine,  as  it  seems  to  me,  is,  that,  whenever  the  plain- 
tiff could  have  resumed  the  property,  if  he  could  lay  his  hands  on  it, 
and  could  have  rightfully  held  it  when  recovered  as  the  full  and 
absolute  owner,  he  is  entitled  to  recover  the  value  of  it  as  damages 
in  the  action  of  trover,  which  stands  in  the  place  of  such  resumption. 

In  the  present  case,  I  think  it  plain  that  the  bailment  having  been 
terminated  by  the  wrongful  sale,  the  plaintiff  might  have  resumed 
possession  of  the  goods  freed  from  the  bailment,  and  might  have  held 
them  rightfully  when  so  resumed,  as  the  absolute  owner,  against  all 
the  world.  And  I  therefore  think  he  ought  to  recover  the  full  value 
of  them  in  this  action. 

Nor  can  I  see  any  injustice  in  the  defendant's  being  thus  remitted 
to  his  unsecured  debt,  because  his  lien  has  been  forfeited  by  his  own 
violation  of  the  conditions  on  which  it  was  created. 

Rule  absolute  to  reduce  the  damages  to  40s. 

Note.  —  In  Halliday  v.  Holgate,  L.  R.  3  Exch.  299,  on  similar 
facts,  the  court  held  that  not  even  nominal  damages  to  the  plaintiff 
were  proper,  as  the  plaintiff,  not  having  paid  his  debt,  did  not  have 
the  immediate  right  to  the  possession  of  the  chattel. 


WHIPPLE  V.   DUTTON. 

175  Mass.  365.     1900. 

Tort,  by  the  assignees  in  insolvency  of  the  estate  of  the  Beacon 
Cycle  Manufacturing  Company,  for  the  conversion  of  five  hundred 
bicycles.  Trial  in  the  Superior  Court,  without  a  jury,  before  Lilley, 
J.,  who  allowed  a  bill  of  exceptions,  in  substance  as  follows. 

During  the  years  1892  and  1893  the  Beacon  Cycle  Manufacturing 


362  WHIPPLE    V.    BUTTON.  [CHAP.  I. 

Company,  a  corporation,  was  engaged  in  Westborough  in  the  manu- 
facture and  sale  of  bicycles.  On  June  26,  1893,  the  corporation 
entered  into  an  agreement  in  writing  with  the  defendants,  which 
recited  that  the  corporation  had  simultaneously  delivered  to  the 
defendants  five  hundred  "  Nomad  "  bicycles  for  the  purpose  of  secur- 
ing money  for  its  use  as  a  corporation,  and  had  executed  and  deliv- 
ered therewith  its  three  promissory  notes,  each  for  $4,166.67,  of  even 
date,  payable  in  thirty,  sixty,  and  ninety  days  from  date,  the  amount 
of  the  notes  being  made  up  by  calling  each  of  the  bicycles  of  the 
value  of  $25  each;  that  if  the  first  note  was  paid,  the  defendants 
should  release  one  third  of  the  five  hundred  bicycles  on  being  paid 
$26  for  each  bicycle,  the  amount  of  the  note  being  pajTnent  so  far  as 
the  bicycles  released,  but  if  the  note  was  not  paid,  then  one  third 
of  the  bicycles  should  be  the  absolute  property  of  the  defendants; 
that  if  the  second  note  was  paid,  another  one  third  of  the  bicycles 
should  be  released  on  the  payment  of  $27  a  bicycle;  and  if  the  third 
note  was  paid,  then  the  remainder  of  the  bicycles  should  be  released 
on  the  payment  of  $28  each  therefor,  but  if  each  note  was  not  paid, 
then  such  one  third  of  the  bicycles  should  be  the  absolute  property  of 
the  defendants;  and  that  the  whole  number  of  bicycles  might  be 
released  at  the  maturity  of  the  first  note  "by  paying  $26  for  the 
whole  number  of  the  five  hundred  bicycles,  the  other  two  notes  to  be 
then  given  up." 

The  five  hundred  bicycles  were  not  delivered  to  the  defendants 
as  recited  in  this  agreement,  and  later  the  same  day  the  corporation 
executed  the  following  paper:  "This  instrument  entitles  Houghton 
&  Button  to  the  delivery  to  them  of  five  hundred  Nomad  bicycles, 
the  same  being  an  accepted  order  for  said  number  of  machines  to  be 
delivered  to  them  as  they  may  request,  as  rapidly  as  one  hundred 
and  fifty  per  week;  and  this  delivery  is  to  be  on  the  terms  of  our 
agreement  with  them  dated  June  26,  1893,  and  is  hereby  made  a  part 
thereof;  said  machines  having  been  paid  for  in  cash  and  agreements." 
Wheels  to  the  number  of  three  hundred  and  forty-four  were  delivered 
to  the  defendants  in  June  and  July,  1893,  at  various  times,  and  as 
delivered  the  defendants  advanced  to  or  paid  the  corporation  at  the 
rate  of  $25  a  wheel.  The  balance  of  the  five  hundred  wheels  was 
never  delivered,  and  the  last  of  the  three  notes  mentioned  in  the 
agreement  was  not  used  by  the  defendants  or  presented  for  paj^ment. 
The  corporation  did  not  pay  the  notes  referred  to  in  the  agreement 
at  their  maturity,  and  has  never  paid  the  same  or  any  part  thereof, 
but  on  October  7,  1893,  was  declared  insolvent  by  the  court  of  insol- 
vency for  the  county  of  Worcester  upon  a  petition  by  one  of  its 
creditors,  and  on  October  31, 1893,  the  plaintiffs  were  duly  appointed 
assignees  of  the  insolvent  estate. 

On  October  12,  1893,  the  defendants  began  to  sell  the  bicj^cles 
received  under  the  agreements,  at  private  sale  and  singly  or  in  small 


SECT.  IV.]  WHIPPLE    V.    BUTTON.  363 

lots,  and  all  of  them  had  been  sold  before  June,  1894.  The  defendants 
did  not  serve  any  notice  upon  the  corporation  or  upon  the  plaintiffs 
of  an  intention  to  sell;  but  the  secretary  of  the  corporation  knew  that 
sales  were  being  made,  and  in  general  as  to  the  price,  and  there  was 
no  evidence  that  he  objected  thereto.  The  sales  were  made  openly 
at  the  large  establishment  of  the  defendants  in  Boston;  and  the 
bicycles  were  exhibited  in  the  defendants'  windows,  where  they  were 
seen  by  an  officer  of  the  corporation. 

It  was  not  contended  that  the  defendants  did  not  use  good  judg- 
ment and  diligence  in  effecting  sales  at  favorable  prices,  the  plaintiffs 
contending  that  the  defendants  had  no  right  to  sell  at  all. 

In  September,  1894,  before  the  bringing  of  the  writ,  one  of  the 
plaintiffs  called  upon  counsel  for  the  defendants,  to  whom  he  had 
been  referred  by  the  defendants,  and  was  informed  that  all  the  bicy- 
cles had  been  sold  by  the  defendants,  and  that  therefore  they  could 
not  return  them  if  demanded;  and  in  reply  to  an  inquiry  whether  a 
tender  would  be  required,  stated  that  it  would  do  no  good  to  make 
any  demand  or  tender. 

He  further  stated  that  upon  failure  of  the  corporation  to  pay  its 
notes,  he  considered  that  the  bicycles  mentioned  in  the  agreement 
became  absolutely  the  property  of  the  defendants;  and  that  they 
recognized  no  rights  of  the  assignees  to  recover  the  value  of  the  goods. 
There  was  evidence  that  the  bicycles  were  worth  from  $50  to  S80 
apiece. 

The  judge  ruled,  as  requested  by  the  defendants,  that  the  plain- 
tiffs were  not  entitled  to  recover,  and  found  for  the  defendants;  and 
the  plaintiffs  alleged  exceptions. 

Morton,  J.  We  assume,  as  the  defendants  contend,  that  the  trans- 
actions of  June  26  constituted  a  pledge  of  the  bicycles  received  by 
the  defendants,  and  that  the  subsequent  sales  as  made  by  the  defend- 
ants were  unauthorized.  But  it  does  not  follow  that  the  plaintiffs 
are  entitled  to  recover  the  value  of  the  bicycles  thus  sold.  The  de- 
fendants had  possession  of  the  bicycles,  and  had  a  lien  on  them  for 
sums  lent  to  the  bicycle  company  which  were  overdue  and  unpaid. 
They  had  a  right  to  foreclose  the  pledge  in  any  manner  authorized 
by  law.  The  plaintiffs  contend  that  they  foreclosed  in  a  manner 
unauthorized  by  law.  But  the  only  effect,  it  seems  to  us,  of  the 
unauthorized  sales  by  the  defendants  was  to  entitle  the  plaintiffs  to 
recover  any  damages  sustained  thereby.  The  plaintiffs  admit  in 
substance  that  the  defendants  used  good  judgment  and  diligence 
in  selling  and  that  the  sales  were  effected  at  favorable  prices,  and  it 
does  not  appear  that  the  proceeds  were  more  than  enough  to  pay 
what  was  due  the  defendants.  Under  such  circumstances  we  fail 
to  see  how  the  plaintiffs  have  sustained  any  damage.  It  would  be 
singular  if,  having  a  right  to  foreclose  the  pledge,  the  defendants 
should  be  held  to  have  lost  their  lien  and  to  be  liable  for  the  value  of 


364  DIMOCK    V.    UNITED    STATES    NATIONAL    BANK.       [cHAP.  I. 

the  bicycles,  because,  without  inflicting  any  damage  thereby  on  the 
pledgor,  they  went  the  wrong  way  about  the  foreclosure,  or  claimed 
a  greater  right  than  they  actually  had.  We  do  not  think  that  such 
is  the  law.  See  Dahill  v.  Booker,  140  Mass.  308;  Farrar  v.  Paine,  173 
Mass.  58  and  cases  cited;  Halliday  v.  Holgate,  L.  R.  3  Ex.  299; 
Johnson  V.  Stear,  15  C.  B.  (N.S.)  330. 

Other  questions  have  been  raised  and  argued  which,  in  conse- 
quence of  the  views  expressed  above,  it  does  not  seem  to  us  necessary 
to  consider. 

Exceptions  overruled. 

Note.  —  There  are  numerous  authorities  to  the  effect  that  a 
pledgee,  by  making  an  unauthorized  transfer  of  the  pledge,  does  not 
forfeit  the  debt  owed  by  the  pledgor,  and  that  he  may  avail  himself 
of  such  debt,  in  defending  an  action  for  the  conversion  of  the  pledge. 
See  Hallack  Co.  v.  Gray,  19  Col.  149;  Rosenzweig  v.  Frazer,  82  Ind. 
342;  Feige  v.  Burt,  118  Mich.  243;  Woodworth  v.  Hascall,  59  Neb. 
124;  WiUon  v.  Uttle,  2  N.Y.  443;  Neiier  v.  Kelly,  69  Pa.  403. 


DIMOCK  V.  UNITED  STATES  NATIONAL  BANK 

55  X.  J.  L.  296.     1893. 

This  suit  was  brought  upon  a  note,  of  which  the  following  is  a 
copy: 

"S50,000.  New  York,  April  15,  1884. 

"Four  months  after  date  without  grace,  we  promise  to  pay  to  the 
United  States  National  Bank,  or  order,  at  its  office  in  the  City  of 
New  York,  the  sum  of  Fifty  thousand  00-100  for  value  received, 
with  interest  at  the  rate  of  six  per  cent  per  annum  payable  —  ha\ang 
deposited  herewith,  and  pledged  as  collateral  security  to  the  holder 
thereof,  the  following  property,  viz. : 

"200  shares  Bankers  &  Merchants  Tel.  Stock. 

"200      "      Missouri  Pacific  R.  R.  Stock. 

"200      "       Delaware,  Lac.  &  W.  R.  R.  Stock. 

"  15  "  Central  Iowa,  III. ,  Div.  1st  Bonds,  with  authority  to 
the  holder  hereof  to  sell  the  whole  of  said  property,  or  any  part 
thereof,  or  any  substitute  therefor,  or  any  additions  thereto,  at  any 
Broker's  Board,  in  the  City  of  New  York,  or  at  public  or  private  sale 
in  said  city  or  elsewhere,  at  the  option  of  such  holder,  on  the  non- 
performance of  any  of  the  promises  herein  contained,  without  notice 
of  amount  claimed  to  be  due,  without  demand  of  pajTnent,  without 
advertisement  and  without  notice  of  the  time  and  place  of  sale,  each 
and  every  of  which  is  hereby  expressly  waived. 

"It  is  agreed  that  in  case  of  depreciation  in  the  market  value  of 


SECT.  IV.]    DIMOCK    V.    UNITED    STATES    NATIONAL    BANK.  365 

the  property  hereby  pledged  (which  market  vakie  is  now  S ) 

or  which  may  hereafter  be  pledged  for  this  loan,  a  payment  shall  be 
made  on  account  of  this  loan  upon  the  demand  of  the  holder  hereof, 
so  that  the  said  market  value  shall  always  be  at  least  —  per  cent, 
more  than  the  amount  unpaid  of  this  note  and  that  in  case  of  failure 
to  make  such  pajTnent,  this  note  shall,  at  the  option  of  the  holder 
hereof,  become  due  and  payable  forthwith,  anything  hereinbefore 
expressed  to  the  contrary  notwithstanding,  and  that  the  holder  may 
immediately  reimburse  —  by  sale  of  the  said  property  or  any  part 
thereof.  In  case  the  net  proceeds  arising  from  any  sale  hereunder, 
shall  be  less  than  the  amount  due  hereon  —  promise  to  pay  to  the 
holder,  forthwith  after  such  sale,  the  amount  of  such  deficiency  with 
legal  interest. 

"It  is  further  agreed,  that  any  excess  in  the  value  of  said  col- 
laterals, or  surplus  from  the  sale  thereof  beyond  the  amount  due 
hereon,  shall  be  applicable  upon  any  other  note  or  claim  held  by  the 
holder  hereof  against  —  now  due  or  to  become  due,  or  that  may  be 
hereafter  contracted  and  that,  if  no  other  note  or  claim  against  — 
is  so  held,  such  surplus,  after  the  payment  of  this  note  shall  be  re- 
turned to or assigns. 

"It  is  further  agreed  that  upon  any  sale  by  virtue  hereof,  the 
holder  hereof  may  purchase  the  whole  or  any  part  of  such  property 
discharged  from  any  right  of  redemption,  which  is  hereby  expressly 
released  to  the  holder  hereof,  who  shall  retain  a  claim  against  the 
maker  hereof  for  any  deficiency  arising  upon  such  sale. 

"A.  W.  DiMOCK  &  Co." 

The  other  facts  appear  in  the  opinion  of  the  court. 

On  error  to  the  Union  Circuit. 
I    The  opinion  of  the  court  was  delivered  by 

Depue,  J.  The  note  on  which  this  suit  was  brought  was  in  terms 
made  payable  in  four  months  after  date.  It  became  due  August  15th, 
1884.  This  suit  was  brought  May  21st,  1891.  The  suit  was  in  all 
respects  regular,  and  its  regularity  was  in  no  wise  dependent  upon 
that  paragraph  in  the  pledge  of  securities  which,  upon  certain  con- 
ditions, accelerated  the  maturity  of  the  note  and  made  the  money 
payable  at  a  time  earlier  than  that  named  on  its  face. 

The  securities  pledged  for  the  payment  of  the  note  were  sold  by 
the  plaintiff  on  the  15th  of  May,  1884,  and  the  note  matured  in  the 
following  August.  From  the  sale  the  sum  of  $45,456.26  was  realized, 
leaving  a  balance  due  on  the  note  of  $4,456.25,  for  which  the  plaintiff 
claimed  judgment.  The  defendants'  contention  was  that  the  sale  in 
May  was  unauthorized  and  amounted  in  law  to  a  conversion.  In  all 
other  respects  the  sale  was  in  conformity  with  the  power.  On  the 
theory  that  the  sale  at  the  time  in  question  was  unauthorized,  the 
defendants  contended  that  they  were  entitled  to  have  the  value  of 
the  securities  allowed  to  them  at  their  highest  market  price  between 


366  DIMOCK    V.    UNITED    STATES    NATIONAL    BANK.       [CHAP.  I. 

the  conversion  and  the  time  of  the  trial.  The  defendants  gave  in  evi- 
dence the  fact  that  in  December,  1886,  and  April  and  May,  1887, 
these  securities  were  worth  in  the  market  the  sum  of  $56,860  — - 
sufficient  to  pay  the  plaintiff's  note  and  leave  a  balance  of  $6,860  due 
the  defendants. 

The  defendants'  claim  was  disallowed,  and  judgment  given  for  the 
plaintiff  for  the  sum  of  $4,456.26,  being  the  balance  due  on  the  note 
after  crediting  on  it  the  proceeds  of  sale,  with  interest. 

The  case  was  tried  by  the  judge,  a  jury  being  waived.  A  general 
exception  was  taken  to  his  finding.  Upon  such  an  exception,  if  there 
be  evidence  to  sustain  the  finding,  the  exception  will  not  be  sustained. 

The  plaintiff  is  a  national  bank  located  in  the  city  of  New  York. 
The  defendants,  at  the  time  of  these  transactions,  were  bankers  and 
brokers  in  New  York.  The  debt  for  which  the  note  was  given  was  a 
loan  of  $50,000  to  the  defendants.  The  form  of  the  contract  pledging 
securities  for  the  repayment  of  loans  is  such  as  is  usual  in  that  city. 
It  must  be  assumed  that  the  parties  were  aware  of  the  effect  of  the 
terms  of  such  contracts,  and  with  the  course  of  deahng  in  that  market 
with  securities  pledged  as  security  for  loans. 

By  the  first  paragraph  in  the  defendants'  contract  the  plaintiff 
was  authorized  to  sell  the  securities  at  any  broker's  board  in  the  city 
of  New  York,  or  at  public  or  private  sale  in  said  city  or  elsewhere,  at 
its  option,  on  the  non-performance  of  any  of  the  defendants'  promises 
therein  contained,  without  any  notice  of  the  time  and  place  of  sale. 
This  contract  was  embodied  in  and  made  part  of  the  note  itself,  and 
the  promise  to  pay  in  the  note  was  one  of  the  promises  on  the  non- 
paj'ment  of  which  a  sale  was  authorized.  The  sale  was  made  through 
a  firm  of  brokers  who  were  members  of  the  stock  exchange  in  New 
York  City.  There  is  no  foundation  in  the  evidence  for  complaint  of 
the  manner  or  fairness  with  which  the  sale  was  conducted. 

The  power  of  the  plaintiff  to  sell  the  securities  before  the  four 
months  named  in  the  note  had  expired,  depends  upon  the  construc- 
tion and  effect  of  the  second  paragraph  of  the  contract.  There  was 
some  discussion  on  the  argument  as  to  the  right  to  fill  the  blanks  in 
that  paragraph.  The  evidence  was  not  sufficient  to  justify  the  court 
in  filling  the  blanks.  The  contract  will  be  construed  in  the  condition 
it  was  in  when  it  was  delivered  to  the  plaintiff.  In  this  paragraph  it 
is  provided  that  in  case  of  a  depreciation  in  the  market  value  of  the 
property  pledged,  the  defendants  should,  on  demand  by  the  holder 
of  the  note,  make  a  payment  thereon,  so  that  the  market  value  of 
the  securities  should  always  be  more  than  the  amount  of  the  debt; 
and  that  in  case  of  the  failure  of  the  defendants  to  make  such  pay- 
ment, the  note  should,  at  the  payee's  option,  become  due  forthwith, 
and  that  the  plaintiff  might  immediate^  reimburse  itself  by  the  sale 
of  the  property  or  any  part  thereof;  and  that  in  case  the  net  proceeds 
of  such  sale  should  be  less  than  the  amount  then  due  on  the  note,  the 


SECT.  IV.]     DIMOCK    V.    UNITED    STATES    NATIONAL    BANK.  367 

defendants  should  forthwith,  after  such  sale,  pay  the  amount  of  such 
deficiency,  with  interest. 

The  power  to  sell  the  securities  before  the  maturity  of  the  note, 
according  to  its  terms,  was  made  to  depend  upon  the  concurrence 
of  two  conditions  —  the  depreciation  in  the  market  value  of  the 
property  pledged,  and  the  failure  of  the  defendants,  after  demand,  to 
make  a  pajanent  on  account  of  the  loan,  so  that  the  market  value  of 
the  securities  pledged  should  be  more  than  the  amount  due  on  the 
note. 

The  proof  was  that  on  the  6th  of  May,  1884,  the  firm  of  Grant, 
Ward  &  Co.  failed,  and  the  Marine  Bank  closed  its  doors.  On  the 
14th  the  Metropolitan  Bank  closed  its  doors,  and  a  number  of  leading 
bankers  failed.  These  failures  created  a  panic  in  the  money  market, 
and  a  great  depreciation  in  the  market  value  of  all  commercial 
securities.  Early  on  the  morning  of  the  15th,  the  defendants'  embar- 
rassments led  them  to  an  assignment  for  the  benefit  of  their  creditors. 
It  fully  appeared  that  at  the  commencement  of  business  hours  on 
the  morning  of  May  loth,  the  securities  pledged  had  so  depreciated 
that  their  market  value  was  considerably  below  the  amount  of  the 
plaintiff's  debt.  Under  a  pledge  with  a  power  of  sale  such  as  exists 
in  this  case,  the  pledgee,  unless  restrained  by  other  conditions  in  the 
contract  of  pledge,  has  a  right  to  sell  whenever  the  condition  of  the 
market  makes  it  prudent  for  him  to  do  so  for  the  protection  of  his 
interests. 

The  other  condition  was  that  a  demand  should  be  made  upon  the 
defendants,  and  that  upon  such  demand  the  defendants  should  pay 
on  account  of  the  note  a  sum  sufficient  to  reduce  the  amount  due 
below  the  market  value  the  securities  then  had.  The  case  shows 
that  at  the  beginning  of  business  hours  on  the  morning  of  the  loth, 
two  notices  were  served  on  the  defendants.  One  of  these  notices 
was  in  a  form,  signed  by  the  cashier  of  the  bank,  in  these  words: 
"I  hereby  call  your  loan  of  April  15,  1884,  for  $50,000."  This 
notice  was  plainty  not  a  demand  in  conformity  with  the  condition 
expressed  in  the  contract.  A  depreciation  in  the  market  value  of  the 
securities  pledged  did  not  convert  the  loan,  which  was  made  on  four 
months'  time,  into  a  call  loan.  That  condition  of  affairs  imposed 
upon  the  defendant  the  obligation,  not  to  pay  the  note  in  full,  but  by 
a  payment  upon  it  to  reduce  the  loan  until  the  amount  remaining 
due  was  under  the  market  value  of  the  securities.  It  appeared  in  evi- 
dence that  the  other  notice  served  was  "a  demand  for  the  payment 
on  account  of  the  loan  to  a  degree  corresponding  to  the  depreciation 
of  the  securities."  Neither  the  original  notice  nor  a  copy  was  pro- 
duced. The  witness  who  testified  upon  this  subject  was  not  able  to 
state  the  amount  of  the  depreciation,  but  he  added  that  such  depre- 
ciation was  known  to  both  the  borrower  and  lender. 

The  object  of  a  demand  in  a  contract  of  this  sort  is  to  give  the 


368  DIMOCK    V.    UNITED    STATES    NATIONAL    BANK.       [cHAP.  I. 

party  an  opportunity  to  comply  with  the  terms  of  his  contract  and 
preserve  his  securities  from  sale  before  the  expiration  of  the  time  for 
which  the  loan  was  negotiated;  and  it  would  be  reasonable  that  in 
making  the  demand  the  party,  before  he  is  put  in  default,  should 
have  been  made  aware  of  the  extent  of  the  depreciation,  approxi- 
mately, at  least,  and  the  sum  required  to  be  paid  to  save  his  rights 
should  be  specified.  If  the  case  rested  solely  on  the  sufficiency  of 
the  demand  made,  I  should  have  some  hesitation  in  sustaining  this 
judgment. 

Assuming  that  the  sale  of  the  securities  in  May  was  unauthorized, 
it  was  a  conversion  of  the  property,  though  the  sale  was  made  in 
good  faith.  Nevertheless,  the  judge's  finding  and  the  rule  of  damages 
applied  were  correct. 

The  general  rule  is,  that  the  measure  of  damages  for  conversion 
is  the  value  of  the  property  at  the  time  of  the  conversion.  This  rule 
has  been  modified  with  respect  to  the  conversion  of  stocks  and  bonds, 
commercial  securities  vendible  in  the  market,  the  market  value  of 
which  is  Hable  to  frequent  and  great  fluctuations  caused  by  the 
depression  and  inflation  of  prices  in  the  market. 

In  Markham  v.  Jaudon,  41  N.Y.  235,  the  Court  of  Appeals  held 
that  as  between  a  customer  and  his  broker,  holding  stock  purchased 
for  the  former,  which  had  been  pledged  as  security  for  advances 
made  in  the  purchase,  the  measure  of  damages  for  the  conversion  by 
an  unauthorized  sale  was  the  highest  market  price  between  the  time 
of  the  conversion  and  the  trial.  Relying  upon  this  case,  the  defend- 
ants put  in  evidence  no  proof  of  value  except  the  market  value  in 
December,  1886,  and  April  and  INIay,  1887.  But  Markham  v.  Jaudon 
has  been  overruled  by  a  series  of  cases  in  the  New  York  courts,  and 
the  rule  adopted  that  in  such  cases  the  principal  may  disaffirm  the 
sale,  and  that  the  advance  in  the  market  price  from  the  time  of  sale 
up  to  a  reasonable  time  to  replace  it,  after  notice  of  the  sale,  was  the 
proper  measure  of  damages.  Baker  v.  Drake,  53  N.Y.  211;  s.  c.  66 
Id.  518;  Gruman  v.  Smith,  81  Id.  25;  Colt  v.  Owens,  90  Id.  368.  These 
decisions  were  made  in  cases  where  the  transactions  were  dealings 
between  the  customer  and  broker  in  the  purchase  and  sale  of  stocks 
on  a  margin.  Subsequently,  the  same  rule  was  applied  where  the 
owner  of  stock,  for  which  he  had  paid  full  value  and  which  he  held  as 
an  investment,  put  it  in  the  hands  of  a  broker  as  collateral  security 
for  the  debt  of  a  third  person,  upon  condition  that  it  should  not  be 
sold  for  six  months,  the  stock  having  been  sold  without  the  owner's 
authority  before  the  expiration  of  that  time.  Under  the  decisions 
of  the  New  York  courts,  reasonable  time,  where  the  facts  are  undis- 
puted, is  a  question  of  law  for  the  court.  Wright  v.  Baiik  of  Metrop- 
olis, 110  N.Y.  237.  In  Colt  v.  Owens,  90  N.Y.  368,  thirty  days  after 
the  sale  and  notice  of  it  was  regarded  as  reasonable  time.  The  rule  of 
the  highest  intermediate  value  between  the  time  of  the  conversion 


SECT.  IV.]    DIMOCK    V.    UNITED    STATES    X.A.TIONAL    BANK.  369 

and  the  time  of  the  trial  has  been  rejected  in  the  Supreme  Court  of 
the  United  States  as  the  proper  measure  of  damages,  and  the  rule 
that  the  highest  intermediate  value  between  the  tune  of  the  conver- 
sion and  a  reasonable  time  after  the  o-vvner  has  received  notice  of  it, 
was  adopted  as  the  correct  view  of  the  law,  for  the  reason,  as  ex- 
pressed by  Mr.  Justice  Bradley,  that  more  transactions  of  this  kind 
arise  in  the  State  of  New  York  than  in  all  other  parts  of  the  country, 
and  that  the  New  York  rule,  as  finally  settled  by  its  Court  of  Ap- 
peals, has  the  most  reason  in  its  favor.  Galigher  v.  Jones,  129  U.S. 
193. 

The  principle  upon  which  this  doctrine  rests  is  the  consideration 
that  the  general  rule  that,  in  an  action  for  a  conversion,  the  market 
value  of  the  property  at  the  time  of  the  conversion  would  afford  an 
inadequate  remedy,  or  rather  no  remedy  at  all,  for  the  real  injury, 
which  consisted  in  the  wrongful  sale  of  property  of  a  fluctuating 
value  at  an  unfavorable  time,  chosen  by  the  broker  himself.  Hence, 
the  cost  of  replacing  the  securities  by  a  purchase  in  the  market, 
allowing  a  reasonable  time  for  that  pui-pose,  has  been  regarded  as  the 
proper  measure  of  damages.  As  was  said  by  Mr.  Justice  Bradley  in 
Gallagher  v.  Jones:  "A  reasonable  time  after  the  wrongful  act  com- 
plained of  is  to  be  allowed  to  the  party  injured  to  place  himself  in  the 
position  he  would  have  been  in  had  not  his  rights  been  invaded." 
The  general  rule  that  the  market  value  at  the  time  of  the  conversion 
is  the  measure  of  damages,  being  found  to  be  impracticable  in  these 
cases,  and  having  been  abandoned,  the  effort  has  been  to  obtain  some 
rule  by  which  substantial  justice,  as  near  as  may  be,  may  be  attained. 
In  England  the  market  value  at  the  time  of  the  trial  appears  to  be 
the  measure  of  damages.  Owen  v.  Routh,  14  C.  B.  327.  In  some  of 
the  sister  states  the  rule  of  the  highest  intermediate  price  before  the 
trial  has  been  adopted.  In  New  York  and  in  most  of  the  sister  states, 
as  well  as  in  the  Supreme  Court  of  the  United  States,  the  formula 
which  has  been  called  the  New  York  rule  has  been  adopted,  and  is 
the  rule  which  will  accomplish  the  most  complete  justice  in  the  ordi- 
nary transactions  between  the  broker  and  his  customer  dealing  in 
stocks  when  an  unauthorized  sale  is  the  act  of  conversion.  In  such 
cases  the  customer  has  a  choice  of  remedies.  He  may  claim  the  bene- 
fit of  the  sale  and  take  the  proceeds;  he  may  require  the  broker  to 
replace  the  stock,  or  replace  it  himself  arid  charge  the  broker  for  the 
loss,  or  he  may  recover  the  advance  in  the  market  price  up  to  a 
reasonable  time  within  which  to  replace  it  after  notice  of  the  sale. 
Cook,  Stocks,  §  4G0.  But  where  stocks  and  negotiable  securities  are 
pledged  as  collateral  security  for  the  payment  of  a  deist  to  become 
due  and  paj'able  on  a  future  day,  another  element  enters  into  the 
consideration  of  the  compensation  to  be  awarded  to  the  owner  of  the 
securities  for  the  unauthorized  sale  of  them  before  the  debt  matures. 
Upon  such  a  bailment  it  is  the  duty  of  the  pledgee  to  keep  the  securi- 


370  DIMOCK    V.    UNITED    STATES    NATIONAL    BANK.       [CHAP.  I. 

ties  in  hand  at  all  times  ready  to  be  delivered  to  the  pledgor  on  the 
payment  of  the  debt.  Cook,  Stocks,  §§  469,  471.  An  unauthorized 
sale  before  the  debt  matures  is  a  conversion  for  which  the  pledgor 
may  have  remedy  in  the  manner  above  mentioned.  But  the  sale 
may  be  made  when  the  market  value  is  depreciated  and  the  market 
with  a  downward  tendency;  the  market  may  revive  and  prices  be 
enhanced  before  the  debt  matures.  Under  such  circumstances  a  rule 
that  the  pledgor  shall  be  at  liberty  to  elect  to  treat  the  unauthorized 
sale  as  a  conversion,  or  to  hold  the  pledgee  for  the  breach  of  his  duty 
to  keep  the  securities  until  the  maturity  of  the  debt,  and  recover  as 
damages  the  market  value  of  the  securities  as  of  that  time,  would 
commend  itself  in  reason  and  justice.  As  applied  to  the  facts  of  this 
case,  this  rule  would  be  eminently  just.  The  plaintiff  in  good  faith 
sold  the  securities  in  the  manner  authorized  by  the  contract  of  pledge; 
the  breach  of  duty  was  in  selling  at  an  unauthorized  time.  The  debt 
was  not  paid  or  tendered  at  maturity,  and  if  the  plaintiff  had  held 
the  stock  and  sold  it  at  that  time  the  sale  would  have  been  strictly  in 
conformity  with  the  power.  If  the  defendants  lost  anything  by  the 
sale  at  a  time  unauthorized,  they  would  be  recompensed  for  that  loss 
by  an  award  of  damages  equivalent  to  the  market  value  of  the 
securities  at  the  time  the  debt  became  due.  Tested  by  either  of  these 
standards  the  proper  credit  was  allowed,  the  proof  being  that  the 
prices  of  the  securities  were  less  when  the  note  matured  than  whfen 
the  securities  were  sold.  No  evidence  of  an  increased  price  prior  to 
December,  1888,  was  produced. 

The  finding  of  the  judge  should  be  affirmed  on  the  ground,  also, 
that  the  sale  was  consented  to  and  ratified  by  the  defendants. 

The  notices  served  on  the  morning  of  May  15th  informed  the  de- 
fendants that  the  securities  pledged  had,  in  the  plaintiff's  estimation, 
depreciated  in  market  value,  and  that  the  contingency  provided  for 
in  this  part  of  the  contract  had  happened,  and  also  plainly  indicated 
the  purpose  on  the  part  of  the  plaintiff  to  avail  itself  of  the  right 
which,  under  those  circumstances,  would  accrue  under  the  contract. 
Immediately  after  the  sale  was  made,  the  defendants  had  notice  of 
the  fact  of  sale,  and,  very  shortly  after,  of  the  amount  realized  there- 
from. No  objection  was  made  to  the  sale  or  the  amount  realized.  On 
June  4th,  1884,  the  defendants  filed  a  schedule  of  their  indebtedness 
under  their  assignment.  This  schedule  was  verified  by  the  oaths  of 
the  defendants,  that  it  contained  a  true  account  of  their  creditors 
and  of  the  sum  owing  to  each,  and  also  a  statement  of  any  existing 
collateral  or  other  security  for  the  pajnnent  of  such  debt.  In  this 
statement  the  plaintiff  was  put  do^ii  as  a  creditor  for  the  sum  of 
$4,737.50,  which  was  about  the  amount  due  the  plaintiff  after  the 
proceeds  were  applied  to  the  debt;  and  to  this  specification  of  the 
existing  debt  due  the  plaintiff  was  appended  a  statement  that,  for  the 
pa}Tnent  of  this  debt,  there  was  no  existing  collateral  or  other  secur- 


SECT.  IV.]  SPROUL   V.    SLOAN.  371 

ity.  In  September,  1885,  the  defendants  caused  to  be  presented  to 
the  plaintiff  a  composition  agreement,  with  a  view  to  a  compromise 
with  their  creditors,  in  which  the  debt  due  the  plaintiff  was  stated 
to  be  the  sum  of  §5,118.87,  figures  which  represented  approximately 
the  net  amount  due  the  plaintiff  on  the  note  after  aoplying  thereon 
the  proceeds  of  the  sale  of  the  securities,  with  interest.  This  agree- 
ment was  signed  by  the  plaintiff,  but  the  project  fell  through,  the  de- 
fendants being  unable  to  effect  a  compromise  with  all  their  creditors. 

The  defendants  had  the  election  either  to  ratify  the  sale  and  claim 
the  benefit  of  it,  or  repudiate  it  and  hold  the  plaintiff  in  damages. 
The  act  of  the  defendants  in  applying  the  proceeds  of  the  sale  as  a 
credit  on  the  plaintiff's  note,  is  so  positive  and  emphatic  an  act  of 
ratification  and  adoption  that  it  cannot  be  retracted. 

The  case  was  properly  decided  at  the  trial,  and  the  judgment 
should  be  affirmed. 

Note.  —  There  are  numerous  authorities  to  the  effect  that  the 
pledgee,  after  making  an  unauthorized  transfer  of  the  pledge,  may 
sue  for  the  amount  of  the  debt  owed  him  by  the  pledgor,  less  proper 
damages  for  the  conversion  of  the  pledge.  See  Waring  v.  Gaskill,  95 
Ga.  731;  Upham  v.  Barbour,  65  Minn.  364;  Richardson  v.  Ashby,  132 
Mo.  238;  Minor  v.  Beveridge,  141  N.Y.  399;  Ainsworth  v.  Bowen,  9 
Wis.  348;  Rush  v.  First  National  Bank,  71  Fed.  102. 


SPROUL  V.   SLOAN. 

241  Pa.  284.     1913. 

Opinion  by  Mr.  Justice  Brown,  May  28,  1913: 
Henry  Sproul  &  Company,  stock  brokers,  who  were  engaged  in 
business  in  the  City  of  Pittsburgh,  purchased  for  John  Sloan,  the 
appellee,  in  May,  June  and  August,  1907,  fifteen  hundred  shares  of 
the  capital  stock  of  the  United  Copper  Company.  This  stock  was 
purchased  at  prices  varying  from  $61.50  to  $54  per  share,  and  the 
brokers  agreed  to  carry  it  for  appellee  on  a  margin  of  $20  per  share, 
which  he  deposited  with  them.  As  this  stock  was  purchased  from 
time  to  time  the  brokers  mingled  it  with  other  securities  under  their 
control,  and  pledged  them  to  a  trust  company  and  bankers  as  col- 
lateral for  indebtedness  of  their  own  amounting  to  more  than  a  mil- 
lion and  a  half  dollars.  This  was  without  the  authority  or  knowledge 
of  Sloan.  In  April,  1908,  Sproul  &  Company  sold,  at  $0.25  per  share, 
the  stock  which  they  had  purchased  for  the  appellee,  but  which  he 
refused  to  pay  for  and  take  off  their  hands;  and,  after  crediting  him 
with  the  proceeds,  the  margins  deposited  and  the  dividends  received 
on  the  stock,  this  suit  was  brought  to  recover  the  balance  alleged 


372  SPROUL    V.    SLOAN.  [CHAP.  I. 

to  be  due,  amounting  to  $34,214.51,  with  interest  from  the  date  of 
the  sale  of  the  stock.  A  verdict  was  directed  for  the  defendant,  for 
the  reason,  as  stated  in  the  opinion  of  the  court  denying  a  new  trial 
and  judgment  for  the  plaintiffs  n.  o.  v.,  that,  as  Sproul  &  Company 
had  converted  to  their  own  use  the  stock  purchased  for  the  appellee, 
by  h}-pothecating  it  for  their  owti  indebtedness,  they  had  broken 
their  contract  with  him  and  were  in  no  position  to  demand  perform- 
ance by  him.  As  an  authority  for  so  holding,  the  learned  trial  judge 
cited  and  relied  upon  Gillett  v.  Whiting,  120  N.Y.  402.  What  was 
there  said  sustained  him,  though  it  was  overlooked  that  subse- 
quently the  court  of  appeals  held  that  the  remarks  in  that  case,  as 
to  the  effect  of  a  broker's  conversion  of  his  customer's  securities 
upon  his  claim  against  the  latter,  were  upon  a  question  which  was 
not  before  the  court  and  were,  therefore,  to  be  regarded  as  mere  obiter 
dicta,  in  conflict  with  the  settled  law  of  the  state.  Minor  v.  Bever- 
idge,  141  N.Y.  399.  It  is  not  necessary  for  us  to  review  the  New 
York  cases  cited  by  counsel  for  appellant  in  support  of  their  conten- 
tion that  the  plaintiff  below  ought  to  have  recovered,  for  we  are  of 
opinion  that  the  view  entertained  by  the  court  below  was  the  cor- 
rect one,  without  regard  to  the  particular  authority  upon  which  it 
seems  to  have  relied. 

When  Sproul  &  Company  purchased  the  fifteen  hundred  shares 
of  stock  the  legal  title  to  it  vested  in  Sloan,  subject  to  the  pajTuent 
of  the  balance  due  by  him  for  commissions  and  advances  made  by 
them.  He  became  the  pledgor  and  they  the  pledgees  of  the  stock. 
Learock  v.  Paxson,  208  Pa.  602;  Barbour  v.  Sproul,  239  Pa.  171. 
Sproul  &  Company  might  have  used  the  stock  in  making  a  specific 
loan  for  the  purpose  of  enabling  them  to  carr\^  the  stock  for  the 
appellee,  but,  when  thej^  used  it  for  any  other  purpose,  they  made 
an  improper  use  of  it,  and  when  they  pledged  it,  with  other  securi- 
ties under  their  control,  for  their  own  indebtedness,  they  unlaw- 
fully converted  it  to  their  own  use.  Douglass  v.  Carpenter,  17  N.Y. 
App.  Div.  329;  Strickland  v.  Mogoun,  119  N.Y.  App.  Div.  113,  and 
190  N.Y.  545;  German  Savings  Bank  v.  Renshaio,  78  ]\Id.  475.  "One 
to  whom  stock  has  been  pledged  for  a  loan  has  full  power  to  hy- 
pothecate it  so  long  as  the  original  pledgor  may  obtain  possession  of 
it  upon  payment  of  his  debt;  but  if  it  has  been  mingled  with  the 
other  securities  of  the  pledgee,  or  has  been  reh\T3othecated  by  him 
to  secure  a  different  or  larger  debt  than  that  for  which  it  was  pledged 
to  him,  or  if  the  collaterals  have  been  transferred,  but  the  obligation 
they  were  given  to  secure  retained,  or  if  it  has  been  in  any  way 
placed  beyond  the  control  of  the  pledgee,  this  is  a  conversion."  Vide 
authorities  cited  in  support  of  this  in  31  Cyc.  837. 

But  it  is  earnestly  contended  by  learned  counsel  for  the  appel- 
lant that  inasmuch  as  Sloan  suffered  no  damage  by  the  brokers' 
conversion  of  his  stock,  he  ought  not  to  be  permitted  to  defeat  their 


SECT.  IV.]  SPROUL  V.    SLOAN.  373 

claim.  This  begs  the  question,  for  the  moment  the  stock  was  con- 
verted by  the  brokers  to  their  owti  use,  the  customer  was  damaged, 
and  the  measure  of  his  damages  was  the  highest  price  of  the  stock 
between  the  date  of  the  conversion  and  that  of  the  trial  of  a  suit 
brought  by  the  customer  for  the  unlawful  conversion.  Learock  v. 
Paxson,  supra.  From  this  there  would,  of  course,  have  to  be  de- 
ducted the  balance  of  the  purchase  money  due  the  brokers.  "The 
pledgee  of  stock  cannot  legally  part  with  the  possession  of  the  stock 
by  a  sale  or  repledge  of  it,  except  as  he  transfers  the  debt  which  the 
stock  secures.  If  he  does  so  he  is  guilty  of  a  conversion.  .  .  .  Even 
where,  apparently,  the  pledgor  would  not  be  injured  by  the  pledgee's 
separating  the  stock  from  the  debt  and  transferring  the  stock  pledged 
as  collateral  security,  yet  the  law  rigidly  protects  the  interests  of 
the  debtor  and  pledgor,  and  will  not  compel  him  to  submit  to  the 
danger  of  such  transfers  by  the  pledgee.  There  may,  of  course,  be 
an  express  contract  or  understanding  to  the  contrary."  Cook  on 
Corporations  (6th  Ed.),  sec.  471. 

The  contract  of  Sproul  &  Company,  which  the  appellants,  through 
their  receiver,  would  enforce  against  Sloan,  was  one  to  hold  the 
stock  for  him  until  he  paid  the  balance  of  the  purchase  money  and 
demanded  delivery  of  the  securities,  and  in  the  interval  thej^  had  no 
right  to  repledge  the  stock  except  for  the  debt  which  it  secured.  In- 
stead of  performing  their  contract  with  Sloan,  the  brokers  made  use 
of  his  property  as  if  it  was  a  part  of  their  own  capital,  to  enable  them 
to  make  enormous  loans,  not,  however,  for  the  purpose  of  carrying 
his  stock,  but  that  thej^  might  continue  to  carry  on  their  business  as 
stock  brokers.  They  treated  his  stock  as  their  own,  and  the  moment 
they  did  so  without  his  authority,  they  placed  him  in  jeopardy. 
After  thus  having  broken  their  contract  with  him,  why  should  they 
be  permitted  to  demand  performance  by  him?  He  was  in  entire  ig- 
norance, until  a  short  time  before  the  trial,  that  his  brokers  had  con- 
verted his  stock  to  their  own  use,  and  as  soon  as  he  learned  what 
they  had  done,  he  promptly  repudiated  his  contract  with  them.  This 
was  his  undoubted  right.  The  tender  of  the  stock  to  him  before  it 
was  sold  is  immaterial,  for,  at  the  time  of  the  tender,  the  contract 
had  been  broken  by  the  brokers,  and,  therefore,  neither  they  nor 
their  receiver  could  thereafter  call  for  performance  by  their  customer. 
It  was  for  this  reason  that  the  learned  trial  judge  directed  the  ver- ' 
diet  for  the  defendant,  and  no  sufficient  answer  has  been  given  to  it 
on  this  appeal.  Nothing  is  to  be  found  in  any  of  our  cases  in  conflict 
with  the  view  of  the  court  below.  The  main  reliance  of  counsel  for 
appellant  seems  to  be  placed  on  Wynkoop  v.  Seal,  64  Pa.  361.  In 
that  case  the  broker  bought  stock  for  a  customer  under  a  special 
contract,  by  the  terms  of  which  the  customer  was  to  have  thirty  days' 
credit  in  paying  for  it,  and  the  title  to  it  did  not  pass  at  the  time  of 
the  purchase  from  the  seller.    In  addition  to  this,  the  writer  finds 


37si  TALTY    V.    FREEDMAN's    TRUST    COMPANY.  [CHAP.  I. 

from  an  examination  of  the  paper  books  in  the  case  that  it  did  not 
appear  that  the  broker  had  hypothecated  the  stock  for  any  other 
indebtedness  than  that  of  his  own  customer. 

The  unauthorized  pledging  by  a  broker  of  his  customer's  securi- 
ties places  the  latter  in  jeopardy,  and  the  only  safe  and  sound  rule, 
in  the  absence  of  authority  from  the  customer  to  pledge  them  as 
they  were  pledged  in  the  case  now  before  us,  is  that  the  broker 
pledges  them  at  the  peril  of  forfeiture  of  his  right  to  call  upon  his 
customer  for  performance.  It  was  contended  in  the  court  below  that 
what  Sproul  &  Company  did  was  a  common  usage  among  brokers, 
w'hose  business  would  be  seriously  interfered  with  if  they  were  for- 
bidden to  repledge  securities  of  their  customers.  As  to  this  the 
learned  trial  judge  well  said:  "Such  a  usage  can  never  be  shown,  if 
it  be  in  contravention  of  a  well-established  rule  of  law.  It  is  a  rule 
of  law  in  Pennsylvania  that  the  relation  between  a  broker  and  his 
customer  with  respect  to  stocks  purchased  upon  margin  is  that  of 
pledgor  and  pledgee.  To  pennit  the  broker  to  use  the  stock  as  capi- 
tal in  his  own  business  is  to  shift  the  risk  of  his  business  upon  his 
customers,  a  thing  never  contemplated  in  the  contract.  Such  a  usage, 
if  it  exists,  is  unreasonable:  'Malus  usus  abolendus  est.'  " 

The  assignments  of  error  are  overruled  and  the  judgment  is 
affirmed. 

Note.  —  The  unauthorized  repledge  was  made,  apparently,  at 
or  about  the  time  of  the  purchase  of  the  stock.  If,  therefore,  the 
pledgee  were  charged  with  the  value  of  the  stock  at  that  time,  such 
charge  would  exceed  the  debt  owed  by  the  pledgor  (as  he  had  de- 
posited a  margin).  The  pledgor  seems  to  have  made  no  affirmative 
claim. 

It  is  submitted  that  there  was  no  occasion  for  the  court  to  lay 
down  a  rule  that  an  unauthorized  transfer  of  the  pledge  forfeits 
the  right  in  personam  to  which  the  pledge  was  security.  Cf.  Whipple 
V.  Button,  and  Dhnock  v.  United  States  Bank,  supra,  and  the 
cases  in  the  notes  thereto. 

A  tortious  transfer  by  a  mere  lienholder  does  not  work  a  forfeiture 
of  his  debt. 


TALTY  V.  FREEDMAN'S  TRUST  COMPANY. 

93  U.S.  321.     1876. 

Error  to  the  Supreme  Court  of  the  District  of  Columbia. 

This  was  replevin  by  the  plaintiff  to  recover  a  collateral  security 
pledged  to  one  Kendig,  a  broker,  and  by  him  sold  to  the  defendant. 
Under  the  instructions  of  the  court  below,  the  jury  found  a  verdict 


SECT.  IV.]  TALTY    V.    FREEDMAN's    TRUST    COMPANY.  375 

for  the  defendant;  judgment  was  rendered  thereon,  and  the  plaintiff 
sued  out  this  writ  of  error.  The  facts  are  fully  set  forth  in  the  opin- 
ion of  the  court. 

Mr.  Justice  Swayne  delivered  the  opinion  of  the  court. 

This  was  an  action  of  replevin,  prosecuted  by  the  plaintiff  in  error. 
The  judgment  was  against  him.  The  bill  of  exceptions  discloses  all 
the  evidence  given  by  both  parties.  The  facts  lie  withm  a  narrow 
compass,  and,  except  as  to  one  point,  which  in  our  view  is  of  no  con- 
sequence in  this  case,  there  is  no  disagreement  between  them. 

Talty  had  a  claim  against  the  city  of  Washington  for  work  and 
materials,  amounting  to  $6,096.75.  He  submitted  it  to  the  proper 
authority,  and  received  the  usual  voucher.  On  the  4th  of  January, 
1872,  the  claim  was  approved  by  the  commissioners  of  audit,  and  a 
certificate  to  that  effect  was  given  to  him.  On  the  6th  of  that  month 
he  employed  Kendig,  a  broker,  to  negotiate  a  loan  for  him.  With 
that  view  he  placed  in  Kendig's  hands  his  own  note  for  $3,000,  hav- 
ing sixty  days  to  run,  with  interest  at  the  rate  of  ten  per  cent  per 
annum,  payable  to  his  own  order,  and  indorsed  by  him  in  blank. 
He  also  placed  in  the  hands  of  Kendig  to  be  used  as  collateral,  his 
claim  against  the  city,  indorsed  in  blank  also.  The  same  day  Kendig 
negotiated  the  loan  and  paid  Talty  the  amount  of  the  note,  less  the 
discount.  Kendig  sold  the  claim  against  the  city  to  the  defendant 
for  ninety-six  cents  on  the  dollar.  The  money  was  paid  to  him.  The 
purchase  was  made  in  good  faith,  and  without  notice  of  any  right 
or  claim  on  the  part  of  Talty.  With  the  proceeds  of  this  sale  Kendig 
took  up  the  note.  A  few  days  before  its  maturity  Talty  called  on 
Kendig  and  offered  to  pay  the  note,  and  demanded  back  the  col- 
lateral. Kendig  declined  to  accede  to  the  proposition.  He  insisted 
that  the  understanding  between  him  and  Talty  was  that  he  was  to 
receive  no  commission  for  negotiating  the  loan,  but  that  he  was  to 
have  instead  the  right  to  sell  or  take  the  claim  against  the  city,  if 
he  chose  to  do  so,  at  ninety  cents  on  the  dollar.  He  offered  to  pay 
Talty  for  the  claim,  making  the  computation  at  that  rate,  and  de- 
ducting the  amount  of  the  note.  This  Talty  refused,  and  insisted 
that  Kendig  had  no  authority  with  respect  to  the  claim  but  to  sell, 
in  the  event  of  default  in  the  payment  of  the  note  at  maturity.  Each 
party  testified  accordingly.  Subsequently,  and  after  the  maturity  of 
the  note,  Talty  demanded  from  the  defendant  in  error  the  vouchers 
relating  to  the  claim.  The  defendant  refused  to  give  them  up,  and 
this  suit  was  thereupon  instituted.  The  marshal  took  them  under 
the  writ  of  replevin,  and  delivered  them  to  the  plaintiff. 

No  tender  was  made  by  Talty  to  the  defendant  in  error,  nor  to 
Kendig,  and  nothing  was  said  by  him  upon  the  subject  of  paying  his 
note  to  either,  except  the  offer  to  Kendig,  as  before  stated. 

After  receiving  back  the  collateral,  Talty  was  paid  the  full  amount 
of  it  by  the  commissioners  of  the  sinking  fund  of  the  city.  The  only 


376  TALTY    V.    FREEDMAn's    TRUST    COMPANY.  [cHAP.  I. 

dispute  between  the  parties  as  to  the  facts  was  that  in  relation  to  the 
authority  of  Kendig  touching  the  claim. 

Upon  this  state  of  the  evidence  the  court  instructed  the  jury  to 
find  for  the  defendant,  and  to  assess  the  damages  at  the  value  of  the 
claim.  This  was  done,  and  judgment  was  entered  upon  the  verdict. 
The  instruction  was  excepted  to. 

Before  entering  upon  the  examination  of  the  merits  of  the  con- 
troversy, it  may  be  well  to  consider  for  a  moment  the  situation  of  the 
several  parties.  Talty  has  received  and  holds  the  proceeds  of  his 
note  and  the  full  amount  of  the  collateral.  Kendig  holds  the  note 
and  the  amount  of  the  collateral,  less  four  per  cent.  The  defendant 
in  error,  the  bona  fide  purchaser  of  the  claim,  is  out  of  pocket  the 
amount  paid  for  it  to  Kendig,  and  has  the  burden  of  this  Utigation 
and  the  security  afforded  by  the  replevin  bond  of  Talty. 

The  question  to  be  determined  is,  whether  a  tender  to  the  defend- 
ant in  error  by  Talty  of  the  amount  due  on  his  note  before  bringing 
this  suit  was  indispensable  to  entitle  him  to  recover. 

Kendig  was  not  a  factor  with  a  mere  lien.  He  was  a  pledgee.  The 
collateral  was  placed  in  his  hands  to  secure  the  payment  of  the  note. 
It  was  admitted  by  Talty  that  Kendig  was  authorized  to  sell  it  if 
the  note  were  not  paid  at  maturity.  Kendig  had  a  special  property 
in  the  collateral.  He  was  a  pawnee  for  the  purposes  of  the  pledge. 
Judge  Story  says  (Bailm.  sects.  324-327),  "The  pawnee  may  by 
the  common  law  deliver  over  the  pawn  to  a  stranger  for  safe  custody 
without  consideration;  or  he  may  sell  or  assign  all  his  interest  in  the 
pawn;  or  he  may  convey  the  same  interest  conditionally,  by  way  of 
pawn,  to  another  person,  without  in  either  case  destroying  or  invali- 
dating his  security.  But  if  the  pawnee  should  undertake  to  pledge 
the  property  (not  being  negotiable  securities)  for  a  debt  beyond  his 
own,  or  to  make  a  transfer  thereof  as  if  he  were  the  actual  owner,  it 
is  clear  that  in  such  case  he  would  be  guilty  of  a  breach  of  trust,  and 
his  creditor  would  acquire  no  title  beyond  that  held  by  the  pawnee." 

"Whatever  doubt  may  be  indulged  in,  in  the  case  of  a  mere  fac- 
tor, it  has  been  decided,  in  the  case  of  a  strict  pledge,  that,  if  the 
pledgee  transfers  the  same  to  his  own  creditor,  the  latter  may  hold 
the  pledge  until  the  debt  of  the  original  owner  is  discharged." 

Numerous  authorities  are  cited  in  support  of  these  propositions. 
The  subject  as  to  the  point  last  mentioned  was  learnedly  examined 
in  Jarvis's  Adm.  v.  Rodgers,  15  Mass.  369.  That  was  the  case  of  a 
re-pledge  by  the  first  pledgee.  The  rule  of  the  text  as  to  the  rights 
of  the  sub-pledgee  was  distinctly  affirmed. 

The  case  of  Lewis  v.  Mott,  36  N.Y.  395,  was  in  some  of  its  leading 
points  strikingly  like  the  case  before  us.  There,  Bi-own  had  placed 
certain  collaterals  in  the  hands  of  Howe  to  secure  the  payment  of 
two  promissory  notes  of  Brown  held  by  Howe;  Howe  sold  the  notes 
and  collaterals  to  Varnum;  Brown  offered  to  pay  Varnum  the  amount 


BECT.  IV.]  TALTT    V.    FREEDMAN's    TRUST    COMPANY.  377 

of  the  notes,  and  demanded  the  collaterals;  Varnum  refused  to  give 
them  up,  and  Brown  sued  for  them.  The  court  said,  "It  must  be 
conceded  that  Varnmn,  by  the  purchase  of  those  securities  from 
Howe,  acquired  at  least  the  lien  and  interest  of  Howe,  whatever  that 
may  have  been;  and  the  plaintiff's  assignee,  to  have  entitled  himself 
to  a  redelivery  of  these  securities,  must  have  tendered  the  amount 
of  the  lien.  There  was  simply  an  offer  to  pay  Varnum  the  amount 
due  upon  these  notes.  It  was  unattended  with  any  tender  of  the 
amount  due,  and  was  insufficient  to  extinguish  the  lien  and  thus  en- 
title Brown  to  the  return  of  the  notes.  .  .  .  The  offer  to  pay  is  not 
the  equivalent  for  an  actual  tender.  Batemanv.  Pool,  15  Wend.  637; 
Strong  v.  Black,  46  Barb.  225;  Edmonson  v.  McLeod,  16  N.Y.  543." 
See  also  Baldwin  v.  Ely,  9  How.  580;  Merchants'  Bank  v.  The  State 
Bank,  10  WaU.  604. 

The  English  law  is  the  same.  In  Donald  v.  Suckling,  Law  Rep. 
1  Q.  B.  585,  the  case  was  this:  A.  deposited  debentures  with  B.  as 
security  for  the  pajonent  of  a  bill  indorsed  by  A.  and  discounted  by 

B.  It  was  agreed,  that,  if  the  bill  was  not  paid  when  due,  B.  might 
sell  or  otherwise  dispose  of  the  debentures.  Before  the  maturity  of 
the  bill,  B.  deposited  the  debentures  with  C,  to  be  held  as  security 
for  a  loan  by  him  to  B.  larger  than  the  amount  of  the  bill.  The  bill 
was  dishonored;  and,  while  it  was  unpaid,  A.  sued  C.  in  detinue  for 
the  debentures.  It  was  held  that  A.  could  not  maintain  the  suit  with- 
out having  paid  or  tendered  to  C.  the  amount  of  the  bill.  The  case 
was  elaborately  considered  by  the  court.  See  also  Moore  v.  Conhani, 
Owen,  123;  Ratcliffe  v.  Davis,  Yelv.  178;  Johnson  v.  Gumming,  Scott's 

C.  B.  N.  s.  331. 

A  tender  to  the  second  pledgee  of  the  amount  due  from  the  first 
pledgor  to  the  first  pledgee  extinguishes  ipso  facto  the  title  of  the 
second  pledgee ;  but  that  there  can  be  no  recovery  against  him  with- 
out tender  of  payment  is  equally  well  settled.  Dotiald  v.  Suckling, 
supra;  J  arms' s  Adm.  v.  Rodgers,  supra;  s.  c.  13  Mass.  105. 

But  it  is  suggested  that  the  note  was  in  the  hands  of  Kendig,  and 
that  Talty  could  not,  therefore,  safely  pay  the  amount  due  upon  it 
to  the  holder  of  the  collateral.  The  like  fact  existed  in  Donald  v. 
Suckling.  It  is  not  adverted  to  in  the  arguments  of  counsel,  nor  in 
the  opinions  of  the  judges  in  that  case.  It  could  not,  therefore, 
have  been  regarded  by  either  as  of  any  significance.  The  answer  here 
to  the  objection  is  obvious.  The  note,  a  few  days  before  its  maturity, 
was  in  the  hands  of  Kendig.  There  being  no  proof  to  the  contrary, 
it  is  to  be  presumed  to  have  remained  there.  This  suit  was  com- 
menced after  it  matured.  Talty  might  then  have  paid  the  amount 
due  upon  it  to  the  defendant  in  error,  and  could  thereupon  have  de- 
fended successfully  in  a  suit  on  the  note,  whether  brought  by  Kendig 
or  any  indorsee  taking  it  after  due.  He  might  also,  after  making  t  he 
tender,  have  filed  his  bill  in  equity,  making  Kendig  and  the  savings- 


378  TALTY  V.  freedman's  tru^p  company.         [chap.  \. 

bank  defendants,  and  thus  have  settled  the  rights  of  all  the  parties 
in  that  litigation.  Having  sued  at  law  without  making  the  tender, 
it  is  clear  he  was  not  entitled  to  recover. 

The  instruction  given  by  the  court  to  the  jury  was,  therefore,  cor- 
rect. 

The  proceeding  and  judgment  were  according  to  the  local  law 
regulating  the  action  of  replevin  in  the  District  of  Columbia. 

In  the  discussion  here  our  attention  was  called  only  to  the  ques- 
tion of  tender:  nothing  was  said  as  to  the  rule  of  damages  laid  down 
by  the  court  below. 

There  is  another  question  arising  upon  the  record,  and  that  is, 
whether  the  defendant  in  error,  being  a  bona  fide  purchaser,  did  not, 
under  the  circumstances,  acquire  the  absolute  ownership  of  the  claim. 
Story  on  Agency,  sect.  127;  Addis  v.  Baker,  2  Anst.  229;  McNiel  v. 
The  Tenth  National  BanJc,  46  N.Y.  325;  Fatman  v.  Lobach,  1  Duer, 
354;  Weirick  v.  The  Mahoning  County  Bank,  16  Ohio,  297;  Fullerton 
v.  Sturgess,  4  Ohio  St.  529. 

But  as  the  point  has  not  been  argued,  we  express  no  opinion  upon 
the  subject.  Judgment  affirmed. 

Note.  —  Other  authorities  to  the  effect  that  a  tortious  transfer 
by  the  pledgee  gives  the  assignee  such  rights  as  the  pledgee  might 
properly  have  assigned  are  Williams  v.  Ashe,  111  Cal.  180;  Arsdale 
V.  Joiner,  44  Ga.  173;  Belden  v.  Perkins,  78  111.  449;  Lems  v.  il/ott, 
36  N.Y.  395. 


SECT.  rV.J  HALL    V.    BOSTON    CORPORATION.  379 

B.  Misdelivery  by  a  Bailee. 


HALL  V.  BOSTON  CORPORATION. 

14  All.  (Mass.)  439.     1867. 

Foster,  J.  The  plaintiffs  purchased  and  paid  for  fifty  barrels  of 
flour,  and  received  a  bill  of  sale  from  Clap  &  Brother,  together  with 
an  order  by  them  upon  the  defendant  corporation  to  deliver  that 
number  of  barrels.  The  defendants  had  at  that  time  in  their  freight 
house  a  larger  number  belonging  to  Clap  &  Brother.  The  order  was 
presented  to  the  proper  clerk  of  the  railroad  corporation  by  the 
teamster  of  the  plaintiffs,  who  gave  a  receipt  for  fifty  barrels,  and 
received  in  return  "a  flour  check"  or  order  upon  the  clerk  whose 
business  it  was  to  deliver  such  freight,  for  the  same  number  in  favor 
of  the  plaintiffs.  This  flour  check  or  order  was  presented  to  the  de- 
Uvery  clerk  and  left  in  his  possession.  Under  it,  he  dehvered  to  the 
plaintiffs  twenty-two  barrels  of  flour  and  indorsed  them  on  the  check 
or  order.  All  these  proceedings  were  in  conformity  with  the  usual 
course  of  such  business,  as  recognized  and  permitted  by  the  officers 
of  the  railroad  coiporation.  But  the  remaining  twenty-eight  barrels 
were  never  in  fact  received  by  the  plaintiffs,  but  were  by  mistake 
delivered  to  some  unauthorized  stranger  by  the  delivery  clerk.  The 
facts  disclose  a  sufficient  selection  and  separation  of  the  twenty- 
eight  barrels  as  the  property  of  the  plaintiffs.  The  vendors  ordered 
their  deliver}^;  the  corporation  by  its  agents  accepted  the  order  and 
agreed  to  deliver  the  flour.  It  was  their  duty  to  select  the  barrels 
to  be  delivered  to  the  plaintiffs;  and  they  necessarily  made  an  actual 
selection  and  separation  of  twenty-eight  barrels  under  the  order 
before  the  misdelivery  to  the  stranger,  otherwise  they  could  not  have 
committed  the  mistake  and  indorsed  the  amount  wrongly  delivered 
on  the  plaintiffs'  check.  These  proceedings  were  quite  sufficient  to 
vest  in  the  plaintiffs  the  title  to  the  twenty-eight  barrels  now  in  con- 
troversy. Even  without  the  misdelivery,  the  effect  of  the  vendor's 
order,  when  accepted  by  the  parties  who  had  the  custody  of  the 
whole  property,  and  were  to  select  out  of  the  whole  the  portion  to 
be  delivered,  under  the  circumstances  and  according  to  the  usual 
course  of  business,  would  have  transferred  the  property  in  twenty- 
eight  barrels  to  the  plaintiffs,  as  against  the  creditors  of  the  vendor, 
and  so  as  to  subject  the  vendees  to  the  loss  in  case  of  fire.  Gushing 
v.  Breed,  14  Allen  (Mass.)  376. 

The  plaintiffs  have  therefore  a  property  and  right  of  possession 
sufficient  to  maintain  the  present  action. 

The  remaining  question  is,  Are  the  defendants  liable  for  a  conver- 


380  LAVERTY  V.    SNETHEN.  [CHAP.  u 

sion  of  the  property?  It  is  insisted  on  their  behalf  that  this  depends 
upon  the  amount  of  care  they  were  bound  to  exercise,  and  the  degree 
of  neghgence  of  which  they  were  guilty.  But  this  is  an  erroneous 
view  of  the  law.  A  misdeUvery  of  property  by  any  bailee  to  a  per- 
son unauthorized  by  the  true  owner  is  of  itseK  a  conversion,  render- 
ing the  bailee  liable  in  trover,  without  regard  to  the  question  of  due 
care  or  degree  of  negligence.  This  is  a  well-estabKshed  legal  prin- 
ciple, applicable  to  every  description  of  bailment.  The  action  of 
trover  is  not  maintained  by  proof  of  negligence,  but  only  of  misfeas- 
ance amounting  to  a  conversion.  And  a  delivery  to  an  unauthorized 
person  is  as  much  a  conversion  as  would  be  a  sale  of  the  property, 
or  an  appropriation  of  it  to  the  bailee's  own  use.  In  such  cases  neither 
a  sincere  and  apparently  well-founded  belief  that  the  tortious  act 
was  right,  nor  the  exercise  of  any  degree  of  care,  constitutes  a  de- 
fence even  to  a  gratuitous  bailee.  Lichtenhein  v.  Boston  &  Provi- 
dence Railroad,  11  Cush.  70;  Polley  v.  Len-ox  Iron  Works,  2  ARen,  182; 
Lawrence  v.  Simons,  4  Barb.  354;  Esmay  v.  Fanning,  9  Barb.  176. 
The  question  whether  the  defendants  were  warehousemen  bound  to 
exercise  ordinary  care,  or  gratuitous  bailees  hable  only  for  gross  neg- 
hgence, is  therefore  wholly  immaterial. 

Furthermore,  when  the  freight  was  received  into  the  dep>ot,  the 
railroad  corporation  became  liable  as  warehousemen.  Nonoay  Plains 
Co.  V.  Boston  &  Maine  Railroad,  1  Gray,  263.  The  point  that  the 
owners  of  the  property  failed  to  remove  it  witliin  a  reasonable  time 
does  not  appear  by  the  exceptions  to  have  been  raised  at  the  trial. 
■  The  mere  fact  of  a  sale  by  the  original  owners  to  the  plaintiffs  would 
not  change  the  character  of  the  bailment  and  diminish  the  respon- 
sibility of  the  warehousemen.  The  effect  of  an  unreasonable  delay 
by  the  owner  to  remove  the  property  upon  the  Habilitj^  of  a  railroad 
which  has  freight  on  hand  ready  to  be  delivered  might  under  some 
circumstances  require  consideration.  But  in  the  present  case  no  such 
question  arises.  Exceptions  overruled. 


LAVERTY  V.   SNETHEN. 

68  N.Y.  522.     1877. 

Church,  Ch.J.  The  defendant  received  a  promissory  note  from 
the  plaintiff  made  by  a  third  person  and  indorsed  by  the  plaintiff, 
and  gave  a  receipt  therefor,  stating  that  it  was  received  for  negotia- 
tion, and  the  note  to  be  returned  the  next  dsiy  or  the  avails  thereof. 
The  plaintiff  testified  in  substance  that  he  told  the  defendant  not 
to  let  the  note  go  out  of  his  reach  without  receiving  the  money.  The 
defendant,  after  negotiating  with  one  Foote  about  bujdng  the  note, 
dehvered  the  note  to  him  under  the  promise  that  he  would  get  it  dis- 


3ECT.  IV.]  LAVERTY  V.    SNETHEN.  381 

counted,  and  return  the  money  to  defendant,  and  he  took  away  the 
note  for  that  purpose.  Foote  did  procure  the  note  to  be  discounted, 
but  appropriated  the  avails  to  his  own  use. 

The  court  charged  that  if  the  jury  believed  the  evidence  of  the 
plaintiff  in  respect  to  instructing  the  defendant  not  to  part  with  the 
possession  of  the  note,  the  act  of  defendant  in  delivering  the  note, 
and  allowing  Foote  to  take  it  away,  was  a  conversion  in  law,  and  the 
plaintiff  was  entitled  to  recover.  The  exception  has  been  criticised 
as  applying  to  two  propositions,  one  of  which  was  unobjectionable, 
and  therefore  not  available. 

Although  not  so  precise  as  is  desirable,  I  think  that  the  exception 
was  intended  to  apply  to  the  proposition  above  stated,  and  was  suffi- 
cient. 

The  question  as  to  when  an  agent  is  liable  in  trover  for  conversion 
is  sometimes  difficult.  The  more  usual  liabiHty  of  an  agent  to  the 
principal,  is  an  action  of  assumpsit  or  what  was  fomierl}"  termed  an 
action  on  the  case  for  neglect  or  misconduct,  but  there  are  cases 
when  trover  is  the  proper  remedy.  Conversion  is  deffiied  to  be  an 
unauthorized  assumption  and  exercise  of  the  right  of  ownership  over 
goods  belonging  to  another  to  the  exclusion  of  the  owner's  rights. 
A  constructive  conversion  takes  place  when  a  person  does  such  acts 
in  reference  to  the  goods  of  another  as  amount  in  law  to  appropria- 
tion of  the  property  to  himself.  Every  unauthorized  taking  of  per- 
sonal property,  and  all  intermeddling  with  it,  beyond  the  extent  of 
the  authority  conferred,  in  case  a  limited  authority  has  been  given, 
with  intent  so  to  apply  and  dispose  of  it  as  to  alter  its  condition  or 
interfere  with  the  owiier's  dominion,  is  a  conversion.  Bouv.  Law 
Diet.,  title  Conversion. 

Savage,  Ch.J.,  in  Spencer  v.  Blachnan,  9  Wend.  167,  defines  it 
concisely  as  follows:  "A  conversion  seems  to  consist  in  any  tortious 
act  by  which  the  defendant  deprives  the  plaintiff  of  his  goods." 

In  this  case  the  plaintiff  placed  the  note  in  the  hands  of  the  defendr 
ant  for  a  special  pui-pose  not  only,  but  with  restricted  authority  (as 
we  must  assume  from  the  verdict  of  the  jury),  not  to  part  with  the 
possession  of  the  note  without  receiving  the  m.oney.  The  delivery 
to  Foote  was  unauthorized  and  wrongful,  because  contrary  to  the 
express  directions  of  the  owner.  The  plaintiff  was  entitled  to  the 
absolute  dominion  over  this  property  as  owner.  He  had  the  right  to 
part  with  so  much  of  that  dominion  as  he  pleased.  He  did  part  with 
so  much  of  it  as  would  justify  the  defendant  in  delivering  it  for  the 
money  in  hand,  but  not  otherwise.  The  act  of  permitting  the  note  to 
go  out  of  his  possession  and  beyond  his  reach  was  an  act  which  he 
had  no  legal  right  to  do.  It  was  an  unlawful  interference  with  the 
plaintiff's  property  which  resulted  in  loss,  and  that  interference  and 
disposition  constituted,  within  the  general  principles  referred  to,  a 
conversion,  and  the  authorities  I  think  sustain  this  conclusion,  by  a 


382  LAVERTY  V.    SNETHEN.  [CHAP.  L 

decided  weight  of  adjudication.  A  leading  case  is  Syeds  v.  Hay,  4 
T.  R.  260,  where  it  was  held  that  trover  would  lie  against  the  master 
of  a  vessel  who  had  landed  goods  of  the  plaintiff  contrarj'  to  the 
plaintiff's  orders,  though  the  plaintiff  might  have  had  them  by  send- 
ing for  them  and  paying  the  wharfage.  Bullek,  J.,  said:  "If  one 
man  who  is  intrusted  with  the  goods  of  another  put  them  into  ths 
hands  of  a  third  person,  contraiy  to  orders,  it  is  a  conversion."  This 
case  has  been  repeatedly  cited  by  the  courts  of  this  State  as  good  law, 
and  has  never  to  my  knowledge  been  disapproved,  although  it  has 
been  distinguished  from  another  class  of  cases  upon  which  the  de- 
fendant relies,  and  which  will  be  hereafter  noticed.  In  Spencer  v. 
Blackrnan,  9  Wend.  167,  a  watch  was  delivered  to  the  defendant  to 
have  its  value  appraised  by  a  watchmaker.  He  put  it  into  the  pos- 
session of  the  watchmaker,  when  it  was  levied  upon  by  virtue  of  an 
execution  not  against  the  owner,  and  it  was  held  to  be  a  conversion. 
Savage,  Ch.  J.,  said:  "The  watch  was  intrusted  to  him  for  a  special 
purpose,  to  ascertain  its  value.  He  had  no  orders  or  leave  to  dehver 
it  to  Johnson,  the  watchmaker,  nor  any  other  person."  So,  when  one 
hires  a  horse  to  go  an  agreed  distance,  and  goes  beyond  that  distance, 
he  is  liable  in  trover  for  a  conversion.  Wheelock  v.  Wheelwright,  5 
Mass.  103.  So,  when  a  factor  in  Buffalo  was  directed  to  sell  wheat  at 
a  specified  price  on  a  particular  day,  or  ship  it  to  New  York,  and  did 
not  sell  or  ship  it  that  day,  but  sold  it  the  next  day  at  the  price 
named,  held  that  in  legal  effect  it  was  a  conversion.  Scott  v.  Rogers, 
31  N.Y.  676;  see,  also,  Addison  on  Torts,  310,  and  cases  there  cit^d. 
The  cases  most  strongly  relied  upon  by  the  learned  counsel  for  the 
appellant  are  Dufresne  v.  Hutchinson,  3  Taunt.  117,  and  So.rjeant 
v.  Blunt,  16  J.  R.  73,  holding  that  a  broker  or  agent  is  not  liable  in 
trover  for  selling  property  at  a  price  below  instructions.  The  dis- 
tinction in  the  two  classes  of  cases,  I  apprehend,  is  that  in  the  latter 
the  broker  or  agent  did  nothing  with  the  property  but  what  he  was 
authorized  to  do.  He  had  a  right  to  sell  and  deliver  the  property. 
He  disobeyed  instructions  as  to  price  only,  and  was  liable  for  mis- 
conduct, but  not  for  conversion  of  the  property,  a  distinction  which, 
in  a  practical  sense,  may  seem  technical,  but  it  is  founded  probably 
upon  the  distinction  between  an  unauthorized  interference  with  the 
property  itself,  and  the  avails  or  terms  of  sale.  At  all  events,  the 
distinction  is  fully  recognized  and  settled  by  authority.  In  the  last 
case  Spencer,  J.,  distinguished  it  from  Syeds  v.  Hay,  supra.  He 
said:  "In  the  case  of  Syeds  v.  Hay,  4  Term  R.  260,  the  captain  dis- 
obeyed his  orders  in  delivering  the  goods.  He  had  no  right  to  touch 
them  for  the  purpose  of  delivering  them  on  that  wharf." 

The  defendant  had  a  right  to  sell  the  note,  and  if  he  had  sold  it 
at  a  less  price  than  that  stipulated,  he  would  not  have  been  liable 
in  this  action,  but  he  had  no  right  to  deliver  the  note  to  Foote  to 
take  away,  any  more  than  be  had  to  pay  his  own  debt  with  it.  Mor- 


SECT.  IV.]  riTZGERALD    Vs    BURRILL.  883 

ally,  there  might  be  a  difference,  but  in  law  both  acts  would  be  a 
conversion,  each  consisting  in  exercising  an  unauthorized  dominion 
over  the  plaintiff's  property.  Palmer  v.  Jarmain,  2  M.  &  W.  282,  is 
plainly  distinguishable.  There,  the  agent  was  authorized  to  get  the 
note  discounted,  which  he  did,  and  appropriated  the  avails.  Parke, 
B.,  said:  "The  defendant  did  nothing  with  the  bill  which  he  was  not 
authorized  to  do."  So  in  Cairnes  v.  Bleecker,  12  J.  R.  300,  where 
an  agent  was  authorized  to  deliver  goods  on  receiving  sufficient  se- 
curity, and  delivered  the  goods  on  inadequate  security,  it  was  held 
that  trover  would  not  lie,  for  the  reason  that  the  question  of  the 
sufficiency  of  the  security  was  a  matter  of  judgment.  In  McM orris 
V.  Simpson,  21  Wend.  610,  Bronsen,  J.,  lays  down  the  general  rule 
that  the  action  of  trover  "may  be  maintained  when  the  agent  has 
wrongfull}^  converted  the  property  of  his  principal  to  his  own  use, 
and  the  fact  of  conversion  may  be  made  out  by  showing  either  a 
demand  and  refusal,  or  that  the  agent  has  without  necessity  sold  or 
otherwise  disposed  of  the  property  contrary  to  his  instructions.  When 
an  agent  wrongfully  refuses  to  surrender  the  goods  of  his  principal, 
or  wholly  departs  from  his  authority  in  disposing  of  them,  he  makes 
the  property  his  own  and  may  be  treated  as  a  tort-feasor."  The  re- 
sult of  the  authorities  is  that  if  the  agent  parts  with  the  property, 
in  a  way  or  for  a  purpose  not  authorized,  he  is  liable  for  a  conver- 
sion, but  if  he  parts  with  it  in  accordance  with  his  authority,  al- 
though at  less  price,  or  if  he  misapplies  the  avails,  or  takes  inade- 
quate for  sufficient  security,  he  is  not  liable  for  a  conversion  of  the 
property,  but  only  in  an  action  on  the  case  for  misconduct.  It  fol- 
lows that  there  was  no  error  in  the  charge.  The  question  of  good 
faith  is  not  involved.  A  wrongful  intent  is  not  an  essential  element 
of  the  conversion.  It  is  sufficient  if  the  owner  has  been  deprived  of 
bis  property  by  the  act  of  another  assuming  an  unauthorized  domin- 
ion and  control  over  it. 

Note.  —  See,  accord,  Boldenahn  v.  Schmidt,  89  Wis.  444. 


FITZGERALD   v.  BURRILL. 

106  Mass.  446.     1871. 

Contract  against  Iir-aac  S.  Burrill  and  Robert  A.  Backup,  for 
money  had  and  received ;  with  alternative  counts  in  tort  for  the  con- 
version of  a  letter  and  five  pieces  of  gold  coin  therein  contained.  At 
the  trial  in  the  superior  court,  before  Reed,  J.,  the  following  facts 
were  proved  or  admitted : 

"On  March  5, 1869,  the  plaintiff,  who  was  a  stranger  to  the  defend- 
ants, brought  to  the  post-office,  at  the  Roxbury  station  in  the  city 


384  FITZGERALD    V.    BURRILL.  [CHAP.  I, 

of  Boston,  a  sealed  letter,  addressed  to  '  Edward  Fitzgerald,  Havre 
de  Grace,  Newfoundland,'  containing  gold  to  the  value  of  $32.25, 
and  asked  the  defendant  Backup,  who  was  a  clerk  at  the  office,  then 
on  duty,  and  a  part  of  whose  business  it  was  to  register  letters  there 
to  have  it  registered  and  sent  as  a  registered  letter  to  that  place 
The  clerk  thereupon  undertook  to  register  it,  and  signed  and  gavc 
to  the  plaintiff  a  receipt  for  a  registered  letter,  written  upon  a  printed 
form,  of  which  the  following  is  a  copy:  'Receipt  for  a  Registered 
Letter.  No.  95,  March  5,  1869.  Post-office,  Roxbury,  Mass.  Re- 
csived  of  John  Fitzgerald  a  letter  addressed  to  Edward  Fitzgerald, 
Newfoundland.  (Signed)  W.  L.  Burt,  per  R.  A.  B.,  P.  M.'  The  plain- 
tiff paid  Backup  the  postage  and  a  registration  fee  required  of  him, 
and  gave  no  other  or  further  instruction  to  Backup  than  as  afore- 
said. On  the  same  day  Backup  sent  the  letter  to  the  main  office,  in 
Boston,  and  the  day  afterwards  it  came  back  to  the  Roxbury  office, 
indorsed,  'Cannot  be  registered.'  This  was  the  first  information 
which  the  defendant  received  that  letters  could  no  longer  be  regis- 
tered for  Newfoundland.  The  defendant  Burrill,  who  was  chief  clerk 
in  the  Roxbury  office,  being  made  acquainted  with  these  facts, 
advised  Backup  to  keep  the  letter  a  few  days;  and  it  was  kept  at  the 
Roxbury  office  accordingly  from  six  to  ten  days,  nothing  being  done 
to  find  the  plaintiff  except  that  some  of  the  letter  carriers  were  di- 
rected to  make  inquiries  for  him.  At  the  end  of  the  six  to  ten  days, 
Burrill  asked  Backup  if  the  person  who  mailed  the  letter  had  been 
there;  and  then  told  Backup  to  send  the  letter  by  the  usual  course 
of  the  mail.  Backup  thereupon  put  the  letter  in  the  ordinary,  unreg- 
istered mail,  and  sent  it  awaj',  and  it  was  lost.  It  was  in  evidence  that, 
at  that  time,  the  postal  regulations  did  not  permit  letters  to  be  regis- 
tered for  Newfoundland.  The  plaintiff,  about  a  month  after  leav- 
ing the  letter,  hearing  of  its  non-arrival  at  its  destination,  called 
at  the  Roxbury  office,  and,  on  learning  the  final  disposition  which  was 
made  of  the  letter,  demanded  its  return  of  the  defendants,  which 
was  refused." 

On  these  facts,  the  judge  ruled  that  the  action  could  be  main- 
tained against  Backup  but  not  against  Burrill,  and  by  request  of 
the  parties  reported  the  case  before  verdict;  "if  the  above  ruling  was 
correct,  judgment  to  be  entered  accordingly,  and  if  not  correct, 
such  judgment  to  be  entered  as  the  supreme  judicial  court  shall 
order." 

Chapman,  C.J.  The  letter  was  delivered  by  the  plaintiff,  and  re- 
ceived by  Backup,  with  the  agreement  that  it  should  be  sent  by 
mail  as  a  registered  letter.  Both  of  them  were  mistaken  in  supposing 
that  this  could  be  done.  When  it  came  back  from  the  Boston  office 
to  the  possession  of  Backup,  with  the  information  that  it  could  not 
be  thus  sent,  he  held  it  as  bailee  of  the  plaintiff  without  compensa- 
tion, and  owed  the  plaintiff  merely  the  duties  growing  out  of  such 


SECT.  IV.]  FITZGERALD    V.    BURRILL.  385 

a  relation.  But  he  had  no  authority,  express  or  implied,  to  send  it 
by  mail  as  an  unregistered  letter,  and  subject  the  plaintiff  to  the 
risk  of  losing  it  in  that  way.  The  plaintiff  had  not  left  it  with  him 
for  such  a  purpose.  Nor  had  Burrill  any  authority  to  direct  him  to 
send  it  in  that  way.  It  was  unlike  a  letter  left  at  the  office  without 
any  instructions,  for  in  such  case  there  is  an  implied  direction  and 
authority  to  send  a  letter  according  to  its  superscription. 

The  report  states  that  Burrill,  after  having  ad\'ised  Backup  to 
keep  the  letter  a  few  days,  spoke  to  him  again  about  it,  at  the  end 
of  from  six  to  ten  days,  and,  after  inquiring  about  it,  told  Backup  to 
send  it  by  the  usual  course  of  mail.  This  expression  would  authorize 
the  jury  to  find  that  Backup  sent  it  by  Burrill's  du-ection.  The  rul- 
ing of  the  presiding  judge,  that  the  action  could  not  be  maintained 
against  Burrill,  was  therefore  erroneous;  and,  it  not  having  been 
agreed  that  the  court  might  pass  upon  this  question  of  fact,  and  order 
judgment  against  Burrill,  the  proper  order  is,  that  judgment  is  to 
be  entered  upon  the  report  against  Backup,  and  a  new  trial  is  to  be 
had  as  to  Burrill. 

Ordered  accordingly. 


386  PHASE    V.    SMITH.  [cH.*.r. 


C.  Delivery,  hy  a  Person  having  No  Right  in  the  Chattel 
to  a  Third  Person. 


PEASE  V.   SMITH. 

61  N.Y.  477.     1875. 

The  action  was  brought  for  the  alleged  conversion  by  the  defend- 
ants of  a  quantity  of  law  blanks  belonging  to  the  plaintiffs. 

Plaintiffs  were  book-sellers  and  stationers  in  the  city  of  Albany. 
The  defendants  dealt  largely  in  materials  used  in  the  manufacture 
of  paper.  Their  course  of  business  was  to  purchase  from  junk  shops 
and  small  dealers  rags,  old  paper,  etc.,  in  bales,  and  to  sell  to  the 
manufacturers.  They  bought,  among  others,  from  Moses  K.  Perry, 
a  junk  dealer  in  Albany.  The  evidence  upon  the  trial  tended  to  show 
that  among  the  materials  purchased  from  Perry  were  law  blanks 
belonging  to  the  plaintiffs,  which  had  been  stolen  from  them  by  one 
Frank  Mason,  who  was  a  porter  in  their  employ.  He  lived  in  the 
building  occupied  by  plaintiffs  as  a  store,  had  the  key  to  it,  and  it 
was  his  business  to  open  it  in  the  morning.  He  delivered  packages 
and  parcels  of  books,  and  went  upon  errands,  etc.,  but  was  never 
authorized  to  sell  their  goods.  Certain  bales  of  paper  materials  con- 
taining these  blanks  were  shipped  after  purchase  by  the  defendants 
from  Perry's  store  to  Allen  Brothers,  paper  manufacturers  at  Sandy 
Hill. 

DwiGHT,  C.  It  is  claimed  that  the  judge  erred  at  the  trial  in  refus- 
ing to  grant  a  nonsuit,  because  the  defendants  bought  the  goods  in 
controversy  in  the  course  of  trade,  and  had  sold  them  before  any 
claim  was  made  by  the  owners.  It  is  insisted  by  the  appellant  that  it 
is  a  prerequisite  to  a  valid  claim  for  conversion,  in  such  a  case,  that  a 
demand  should  have  been  made  for  the  goods  while  they  were  in  the 
defendants'  possession,  and  before  their  sale,  and  that  there  can  be  no 
conversion,  unless  control  over  the  property  was  exercised  with  knowl- 
edge of  the  plaintiffs'  rights.  This  proposition  is  untenable.  The 
assumed  sale  by  the  porter  of  the  plaintiffs  to  Perry  was  wholly 
nugatory,  and  conveyed  no  title.  Saltus  v.  Everett,  20  Wend.  267; 
McGoldrick  v.  Willets,  52  N.Y.  612.  On  like  grounds,  the  sale  by 
Perry  to  the  defendants  was  without  effect.  They  were  construc- 
tively in  possession  of  the  plaintiffs'  property  without  the  consent 
of  the  latter.  They  even  sent  their  own  carts  to  transfer  the  goods 
when  sold  to  Allen  Brothers.  This  exercise  of  an  act  of  ownership 
or  dominion  over  the  plaintiffs'  property,  assuming  to  sell  and  dis- 
pose of  it  as  their  own,  was,  within  reason  and  the  authorities,  an 
act  of  conversion  to  their  own  use.   The  assumed  act  of  ownership 


SECT.  IV.]  PEASE   V.    SMITH.  §87 

was  inconsistent  with  the  dominion  of  the  plaintiffs,  and  this  is  of 
the  essence  of  a  conversion.  Knowledge,  and  intent  on  the  part  of 
the  defendants,  are  not  material.  So  long  as  the  defendants  had 
exercised  no  act  of  owTiership  over  the  property,  and  had  acted  in 
good  faith,  a  demand  and  refusal  would  be  necessary  to  put  them  in 
the  wrong  and  to  constitute  conversion.  Until  such  demand,  there 
is  no  apparent  inconsistency  between  their  possession  and  the  plain- 
tiffs' ownership.  After  a  sale  has  been  made  by  the  defendants,  they 
have  assumed  to  be  the  owners,  and  will  be  estopped  to  deny,  in 
an  action  by  the  lawful  owner,  the  natural  consequences  of  their 
act,  and  to  resist  an  action  for  the  value  of  the  goods.  The  principle 
is  well  stated  by  Alderson,  B.,  in  Fouldes  v.  Willoughhy,  8  ^I.  &  \\. 
540:  "Any  asportation  of  a  chattel  for  the  use  of  the  defendant  or 
a  third  person  amounts  to  a  conversion  for  this  simple  reason,  that 
it  is  an  act  inconsistent  with  the  general  right  of  dominion  which 
the  owner  of  a  chattel  has  in  it,  who  is  entitled  to  the  use  of  it  at  all 
times  and  in  all  places."  In  the  same  spirit,  "conversion"  is  de- 
fined, in  a  very  recent  case,  to  be  an  unauthorized  act  which  deprives 
another  of  his  property  permanently^  or  for  an  indefinite  time.  Hio7't 
V.  Bolt,  L.  R.  [9  Ex.]  86  [a.d.  1874].  So,  it  is  said  in  Boyce  v.  Brock- 
way,  31  N.Y.  490,  that  a  wrongful  intent  is  not  an  essential  element 
in  a  conversion.  It  is  enough  that  the  rightful  owner  has  been  de- 
prived of  his  property  by  some  unauthorized  act  of  another  assum- 
ing dominion  or  control  over  it.  No  manual  taking,  on  the  defend- 
ants' part,  is  necessary.  Bristol  v.  Burt,  7  J.  R.  254;  Connah  v.  Hall, 
23  Wend.  462.  The  case  of  Harris  v.  Saunders,  2  Strobh.  Eq.  370, 
resembles  closely  the  case  at  bar.  The  defendant  having  the  prop- 
erty of  the  plaintiff  in  his  own  hands  by  purchase  from  one  who  had 
no  title,  sold  it  to  another  who  carried  it  beyond  the  plaintiff's  reach 
and  received  the  purchase-money.  These  acts  were  held  to  amount 
to  a  conversion,  though  the  defendant  was  not  aware  of  the  plain- 
tiff's title.  As,  according  to  these  views,  the  conversion  took  place 
at  the  moment  of  the  unauthorized  sale  by  the  present  defendants, 
no  demand  was  necessary,  the  sole  object  of  a  demand  being  to  turn 
an  otherwise  lawful  possession  into  an  unlawful  one,  by  reason  of 
a  refusal  to  comply  with  it,  and  thus  to  supply  evidence  of  a  con- 
version. Esmay  v.  Fanning,  9  Barb.  1786;  Vincent  v.  Conklin,  1 
E.  D.  Smith,  203;  Glassner  v.  Wheaton,  2  id.  352;  Hunger  v.  Hess,  28 
Barb.  75.  After  a  wrongful  taking  and  carrying  away  of  the  property, 
the  cause  of  action  has  become  complete  without  further  act  on  the 
plaintiff's  part.  Brewster  v.  Silliman,  38  N.Y.  4.23;Hanmer  v.  Wilsey, 
17  Wend.  91;  Otis  v.  Jones,  21  id.  394. 

Note.  —  See,  accord,  Robinson  v.  Hartridge,  13  Fla.  501,  513; 
Morrill  v.  Moulton,  40  Vt.  242. 
Newsum  v.  Newsum,  1  Leigh  (Va.)  86.  An  administrator  sold  by 


388  TRAYLOR  V.    HORRALL.  [CHAP.  I. 

mistake  property  not  belonging  to  his  intestate,  and  applied  the 
proceeds  to  pajonent  of  his  intestate's  debts.  He  was  held  to  have 
converted  the  property. 

Kenney  v.  Rarmey,  96  Mich.  617.  A  receiver  sold  by  mistake  prop- 
erty to  which  he  had  no  right,  as  receiver,  and  turned  over  the  money 
derived  from  the  sale  as  directed  by  the  court.  He  was  held  to  have 
converted  the  property. 


TRAYLOR  V.   HORRALL. 

4Blackf.  (Ind.)  317.     1837. 

Error  to  the  Daviess  Circuit  Court. 

Blackford,  J.  Trover  by  Horrall  against  Traylor,  Capehart,  and 
Cain.  Plea,  not  guilty.  The  only  evidence  respecting  the  conversion 
was  as  follows :  The  plaintiff  had  put  his  corn  into  a  crib,  which  he 
had  hired  for  the  purpose,  of  Kinman,  and  which  stood  on  Kinman's 
land.  The  defendants  and  some  other  persons  being  present  where 
the  crib  of  corn  was,  Capehart  offered  the  corn  at  public  sale,  and 
Traylor  bid  it  off  at  the  price  of  thirty-one  dollars.  Cain  said  that  he 
had  the  officers  bound  for  his  money.  The  plaintiff  was  also  present, 
and  forbid  any  person  from  selling  or  removing  the  corn,  claiming  it 
to  be  his.  Cain  afterwards  said  that  he  had  got  his  money  from 
Capehart.  The  defendants  demurred  to  the  evidence,  and  agreed 
that  if  judgment  were  rendered  for  the  plaintiff,  the  court  might 
assess  the  damages.  The  demurrer  was  sustained  as  to  Cain,  but 
there  was  a  judgment  against  the  other  defendants,  for  seventy-four 
dollars  in  damages,  together  with  costs. 

We  are  satisfied  that  the  record  shows  no  evidence  conducing  to 
prove  a  conversion  in  this  cause,  and  that  the  judgment  for  the 
plaintiff  is  consequently  erroneous. 

To  support  the  action  of  trover,  there  must  be  proof  of  property 
in  the  plaintiff,  possession  to  have  been  in  the  defendant,  and  a  con- 
version by  the  defendant.  Buller's  N.  P.,  page  33.  The  gist  of  the 
action  is  the  conversion;  and  unless  the  defendant  has  had  an  actual 
or  virtual  possession  of  the  goods,  he  cannot  be  charged  with  a  con- 
version of  them  to  his  own  use. 

In  the  present  cause,  it  does  not  appear  why  the  form  of  a  public 
sale  of  the  corn  in  question  took  place.  It  is  not  shown  that  Cape- 
hart, the  alleged  seller,  had  seized  the  property  under  any  process  of 
law,  or  that  at  the  time  of  the  sale,  or  at  any  other  time,  he  had  or 
pretended  to  have  any  possession  of  it  whatever.  Neither  was  there 
any  attempt  to  prove,  that  Trajdor,  the  purchaser,  ever  took  posses- 
sion of  the  property,  or  exercised  any  act  of  ownership  over  it. 

The  case  of  Bristoly.  Burt,  7  Johns.  Rep.  254,  is  referred  to  by  the 


SECT.  IV.]  TRAYLOR  V.    HORRALL.  3S9 

plaintiff.  But  the  court  there  expressly  say,  that  the  defendant  had 
exercised  the  highest  and  most  unequivocal  acts  of  dominion  and 
control  over  the  goods,  not  only  by  claiming  jurisdiction  over  them, 
but  by  placing  armed  men  near  them  to  prevent  their  removal. 
They  say  further,  that  the  defendant  thus  detained  the  goods  for 
several  months,  and  that  a  charge  was  therefore  brought  upon  the 
plaintiff.  The  court,  in  that  case,  do  not  appear  to  have  had  any  idea, 
that  the  suit  could  be  maintained  without  showing  that  the  defend- 
ant had  intermeddled  with  the  goods,  and  had  for  a  time  excluded 
the  plaintiff  from  their  possession.  They  rely  on  Baldwin  v.  Cole, 
6  Mod.  Rep.  212.  The  plaintiff  had  there  sent  his  servant  with  some 
tools  to  work  in  the  queen's  yard  for  hire.  The  plaintiff,  some  time 
afterwards  having  taken  away  his  servant,  sent  for  the  tools,  but  the 
defendant  refused  to  deliver  them  up.  Trover  was  then  brought  for 
the  tools,  and  the  action  was  sustained  on  the  ground,  that,  as  the 
defendant  had  wrongfully  undertaken  to  detain  them,  he  took  upon 
himself  the  right  to  dispose  of  them,  which  was  a  conversion.  The 
casein  6  Mod.  Rep.  is  settled  law,  and  being  rehed  on  in  Bristol  v. 
Burt,  it  shows  the  ground  upon  which  the  latter  case  was  intended 
to  be  placed  by  the  court. 

In  M'Conibie  v.  Davies,  6  East,  538,  the  plaintiff,  by  his  agent, 
bought  some  tobacco  which  was  in  the  King's  warehouse;  but  the 
agent  took  the  transfer  of  the  tobacco  on  the  warehouse  books  in  his 
own  name.  The  agent  afterwards  pledged  the  tobacco  in  his  o\\ti 
name  with  the  defendant,  and  transferred  it  into  the  defendant's 
name  on  the  books  in  the  warehouse.  The  plaintiff  demanded  the 
tobacco  of  the  defendant,  who  refused  to  deliver  it  up  until  the  debt 
for  which  it  was  pledged  should  be  paid.  The  plaintiff  then  sued  the 
defendant  in  trover  for  the  tobacco.  It  was  strongly  contended  at 
the  trial  that  there  had  been  no  conversion;  and  the  plaintiff  was 
nonsuited.  The  nonsuit,  however,  was  subsequently  set  aside  and 
the  plaintiff  recovered.  In  that  case  the  defendant,  by  the  transfer 
to  him  on  the  dock  books,  had  the  virtual  possession  and  exclusive 
control  of  the  property,  and  he  wrongfully  refused  to  deliver  it  to  the 
rightful  owner. 

In  a  subsequent  case.  Chief  Justice  Best  took  occasion  to  say,  that 
Lord  Ellenborough,  in  M'Combie  v.  Davies,  had  gone  to  the  ex- 
treme verge  of  the  law;  that  as  far  as  that  he  shoukl  go  himself;  but 
that  in  the  case  before  Lord  Ellenborough,  the  state  of  the  property 
was  changed,  because  there  had  been  a  transfer  in  the  dock  books, 
which,  it  was  well  known,  is  as  much  a  transfer  for  the  purposes  of 
trade,  as  an  actual  removal  from  one  warehouse  to  anotlicr;  and  that 
there  was,  in  that  case,  the  exercise  of  dominion  over  the  goods. 
Mallalieu  v.  Laugher,  3  Carr.  &  Payne,  551. 

The  cause  which  we  are  now  to  decide  is  ven,'  different  from  any 
of  those  to  which  we  have  referred.   For  anything  that  the  record 


390  RAMSBY    V.    BEEZLEY.  [CHAP.  I. 

before  us  presents,  the  plaintiff  may  have  always  continued  in  the 
undisturbed  possession  of  the  corn  in  the  place  where  he  originally 
deposited  it,  or  he  may  have  sold  it,  or  have  otherwise  converted  it 
to  his  own  use. 

Per  Curiam.  The  judgment,  etc.,  against  the  plaintiffs  in  error 
is  reversed  with  costs. 

Cause  remanded,  etc. 

Note.  —  See,  accord,  Lancashire  Waggon  Co.  v.  Fitzhugh,  6  H. 
&  N.  502. 


RAMSBY  V.   BEEZLEY. 

11  Or.  49.     1883. 

By  the  Court,  Lord,  J. : 

This  was  an  action  of  trover,  and  the  only  question  involved  in  the 
case  is,  what  will  constitute  a  conversion?  It  originated  in  the  refusal 
of  the  court  to  give  certain  instructions  asked  by  the  defendant,  and 
an  exception  to  an  instruction  given,  based  upon  evidence  tending  to 
show  about  this  state  of  facts :  That  the  plaintiff  was  the  owner  of  the 
cattle  in  controversy  by  purchase  from  one  Smith,  which  were  run- 
ning at  large  on  the  range ;  that  the  defendant  sold  them  to  Strickland, 
and  received  therefor  the  sum  of  $500,  and  that  the  plaintiff  has  never 
seen,  nor  had  possession  of  the  cattle  since.  The  defendant  ad- 
mitted that  he  sold  the  cattle  to  Strickland,  received  the  monej'  for 
them,  and  "believed  and  supposed  that  Strickland  had  took  them," 
but  there  was  no  evidence  that  the  defendant  ever  exercised  any 
other  actual  control,  or  dominion  over  the  cattle  than  such  sale  to 
Strickland,  or  that  he  actually  delivered  them  to  him,  or  that  Strick- 
land ever  gathered  the  cattle  in  pursuance  of  such  sale,  except  what 
may  be  inferred  from  the  fact  that  the  plaintiff  has  never  seen,  nor 
had  possession  of  his  cattle  since  the  sale,  and  the  payment  for  the 
cattle,  and  the  admission  of  the  defendant  that  he  believed  and  sup- 
posed that  Strickland  had  taken  the  cattle.  Upon  this  state  of  facts, 
the  court  gave  the  following  instruction  to  the  jury,  to  which  the 
defendant  excepted :  "Any  assertion  of  title  to,  or  any  act  of  dominion 
over  personal  property  inconsistent  with  the  rights  of  the  owner,  is  a 
conversion.  A  sale  of  the  property  of  one  person  by  another,  is  a  con- 
version. Therefore,  if  you  find  the  plaintiff  was  the  owner  of  the 
cattle  at  the  time  of  the  alleged  taking,  and  that  the  defendant  sold 
them  without  the  plaintiff's  consent,  or  in  any  way  appropriated 
them  to  his  own  use  without  plaintiff's  consent,  you  should  find  for 
the  plaintiff  in  such  sum  as  he  was  damaged  thereby.  But  if  you  find 
that  the  plaintiff  was  not  the  owner  of  the  cattle,  or  that  the  defend- 


SECT.  IV.]  RAMSBY    V.    BEEZLEY.  391 

ant  did  not  so  convert  them,  you  should  find  for  the  defendant." 
The  effect  of  the  instruction  asked,  and  the  point  raised  is,  that  to 
maintain  an  action  of  trover,  the  defendant  must  have  actual  or  vir- 
tual possession  of  the  property.  A  conversion  is  defined  to  be,  "Any 
distinct  act  of  dominion  wrongfully  exerted  over  one's  property  in 
denial  of  his  right,  or  inconsistent  with  it."  Cooley  on  Torts,  448.  "It 
may  be  laid  down  as  a  general  principle,"  says  Mr.  Bigelow,  "that 
the  assertion  of  a  title  to,  or  an  act  of  dominion  over  personal  prop- 
erty, inconsistent  with  the  right  of  the  owner,  is  a  conversion."  Bige- 
low's  Lead.  Cases  on  the  Law  of  Torts,  428;  2  Hill  on  Torts,  sec.  3,  p. 
97.  Of  the  different  ways  by  which  a  conversion  of  personal  prop- 
erty may  be  effected,  one  is,  where  a  party  sells  the  property  of  an- 
other without  his  authority  or  consent.  Such  sale  is  the  assumption 
of  ownership,  of  dominion  over,  or  right  to  control  the  property,  in- 
consistent with,  and  in  denial  of  the  rights  of  the  true  owner.  Hence 
it  is  said,  "  Every  assuming  by  one  to  dispose  of  the  goods  of  another 
16  a  conversion."  Trover,  Bacon's  Abridg.  63L  Or  "the  assumption 
of  authority  over  property,  and  actual  sale,  constitutes  a  conversion." 
Gillman  v.  Hill,  36  N.H.  324.  No  actual  force  need  be  used  {Gihhs 
v.  Chase,  10  Mass.  128) ;  nor  any  manual  taking  or  removal  of  the 
property  {Reynolds  v.  Shvler,  5  Cow.  326;  Connah  v.  Hale,  25  Wend. 
465);  nor  proof  that  the  defendant  had  actual  possession  of  the 
property  (Farnell  v.  Chase,  37  Maine,  290) ;  for,  in  the  language  of 
Shepley,  C. J. :  "The  exercise  of  such  a  claim  of  right,  or  dominion 
over  the  property  as  assumes  that  he  is  entitled  to  the  possession,  or 
to  deprive  the  other  party  of  it,  is  a  conversion."  See  also,  6  Mod. 
212;  McCombie  v.  Davh,  6  East,  540;  Reid  v.  Colcock,  1  Nott.  &  McC. 
601 ;  Dickey  v.  Franklin,  32  Maine,  572. 

As  applied  to  the  facts,  the  instruction  was  not  objectionable.  The 
defendant  had  assumed  to  himself  the  property  and  the  right  of 
disposing  of  the  plaintiff's  cattle.  He  sold  them,  received  the  money 
for  them,  authorized  the  purchaser  to  take  them,  and  swears  he 
believed  and  supposed  the  cattle  were  taken.  The  gist  of  conversion 
is  the  owner's  deprivation  of  his  rightful  dominion  and  control  over 
his  property.  Under  this  state  of  facts,  the  sale  of  the  defendant  was 
a  wrongful  assumption  of  authority  and  dominion,  subversive  of  the 
rightful  dominion  and  control  of  the  plaintiff  over  his  property.  The 
judgment  must  be  affirmed. 

Judgment  affirm^. 

Note.  —  See,  accord,  Mead  v.  Thompson,  78  111.  62. 


392  VARNEY    V.    CURTIS,  [cHAP.  I.' 

VARNEY  V.   CURTIS. 

213  Mass.  309.     1913. 

LoRiNG,  J.  This  is  an  action  for  the  conversion  of  six  Northern 
Pacific  Great  Northern  joint  bonds  (registered  and  non-negotiable), 
one  Union  Pacific  bond  (registered  and  non-negotiable),  two  Wolfe- 
borough  water  bonds  (negotiable  coupon  bonds)  and  one  bond  of 
the  town  of  Wolfeborough  (negotiable  coupon  bond),  all,  with  the 
exception  of  the  last  (which  was  for  S200),  being  bonds  for  $1,000. 
The  case  was  tried  before  Justice  Schofield  without  a  jury.  He  found 
for  the  plaintiff,  and  the  case  is  here  on  exceptions  to  his  refusal  to 
give  seven  rulings  asked  for  by  the  defendant. 

So  far  as  now  material  the  facts  found  by  the  judge  were  as  follows: 
The  plaintiff's  husband  died  in  February,  1902.  Some  of  the  securi- 
ties here  in  question  came  to  her  under  her  husband's  will  and  some 
of  them  had  been  owned  by  her  before  his  death.  Soon  after  her  hus- 
band's death  these  bonds  were  delivered  by  the  plaintiff  to  her  son-in- 
law,  Symonds  by  name,  a  stock  broker,  to  be  kept  by  him  for  her  in  his 
safe  deposit  box.  In  April,  1902,  the  son-in-law  opened  an  account 
with  the  defendants  for  the  purchase  and  sale  of  stocks  and  bonds 
on  margin  and  delivered  to  them  as  security  for  that  account  iriter 
alia  four  of  the  plaintiff's  Northern  Pacific  Great  Northern  joint 
bonds  with  forged  indorsements.  In  the  last  part  of  January,  1904, 
S}Tnonds  directed  the  defendants  to, transfer  this  account  to  Colton 
and  Company.  Pursuant  to  that  direction  the  defendants,  on  Feb- 
ruary 1,  1904,  delivered  to  Colton  and  Company  all  the  stocks  and 
bonds  which  they  were  then  carrying  on  margin  for  Sjononds,  and 
the  bonds  held  by  them  as  security  for  that  margin  account  (includ- 
ing these  four  bonds),  on  receiving  from  Colton  and  Company 
$10,515.54,  the  amount  due  to  them  from  SjTnonds.  In  this  connec- 
tion the  judge  made  the  following  finding  and  ruhng:  "The  defend^ 
ants  in  making  delivery  to  E.  S.  Colton  and  Company  knew  that  the 
bonds  previously  held  by  them  as  collateral  would  be  held  by  Colton 
and  Company  as  collateral,  and  intended  that  result.  The  court,  in 
so  far  as  it  is  a  question  of  fact,  finds  as  a  fact,  and  in  so  far  as  it  is  a 
question  of  law,  rules  as  matter  of  law,  that  such  a  delivery  by  the 
defendants  was  more  than  a  mere  transfer  of  physical  possession  of 
the  bonds  to  Colton  and  Company,  by  order  of  SjTnonds.  It  was  a 
transfer  of  possession  of  bonds  which  they  held  as  collateral  with  the 
intention  that  the  transferees  should  also  hold  them  as  collateral. 
The  court  also  finds  as  a  fact  that  the  defendants  were  not  obliged 
to  make  such  a  delivery  in  the  perfonnance  of  any  duty  which  they 
owed  to  Symonds  by  contract  as  bailees  or  pledgees  under  him.  They 
did  it  voluntarily  in  pursuance  of  his  instructions  and  as  the  mxans 
of  obtaining  pajTnent  of  the  debt  he  owed  to  them.   They  had  no 


SECT.  IV.]  VARNEY   V,    CURTIS.  393 

knowledge  or  notice  that  the  plaintiff  was  the  true  owner  of  the 
bonds,  but  the  court  rules  that  the  act  of  delivery  to  Colton  and 
Company  with  the  intention  above  stated  was  an  exercise  of  owner- 
ship, in  exclusion  of  the  rights  of  the  true  owner,  an  act  of  dominion, 
and  a  conversion." 

On  March  14, 1904,  Symonds  opened  another  margin  account  with 
the  defendants  and  deposited  as  security  for  that  account  another 
Union  Pacific  Great  Northern  joint  registered  bond  belonging  to  the 
plaintiff,  with  a  forged  indorsement.  A  month  and  one  half  later,  to 
wit,  on  April  30,  he  deposited  two  registered  bonds  with  forged  in- 
dorsements (the  Union  Pacific  bond  and  a  Northern  Pacific  Great 
Northern)  and  two  coupon  bonds  (one  Wolfeborough  water  bond,  and 
one  Wolfeborough  town  bond  for  $200) ,  and  on  May  2  he  deposited 
with  the  defendants  another  Wolfeborough  water  bond  (a  coupon 
bond) ,  all  the  property  of  the  plaintiff.  The  judge  found  that  by  reason 
of  what  happened  between  March  14,  when  this  account  was  opened, 
and  April  30,  on  or  after  which  day  the  securities  last  mentioned  were 
deposited,  the  defendants  took  with  notice  all  the  bonds  deposited 
as  security  for  the  second  account  except  the  non-negotiable  North- 
ern Pacific  Great  Northern  bond  deposited  on  March  14,  and  were 
not  purchasers  of  those  bonds  in  good  faith. 

On  May  7  or  9,  at  Symonds's  request,  the  defendants  delivered  to 
Berry  and  Company  the  securities  then  being  carried  by  them  in  the 
second  margin  account  and  the  bonds  held  as  security  for  that  ac- 
count, and  received  from  Berry  and  Company  a  check  for  $11,237.13, 
the  balance  due  from  Symonds  on  that  account.  The  judge  ruled 
"that  the  act  of  the  defendants  in  taking  the  bonds  into  their  posses- 
sion from  Symonds  with  notice,  intending  to  hold  them  as  pledgees, 
was  in  itself  an  exercise  of  dominion  over  them  in  denial  of  the  rights 
of  the  true  owner,  and  a  conversion,"  and  made  "the  same  findings 
of  fact  and  rulings  of  law  in  regard  to  the  two  transfers  of  account." 
The  judge  found  that  Berry  and  Company  became  bankrupt  and 
that  the  bonds  received  by  Colton  and  Company  were  sold  by  them 
and  no  part  of  the  proceeds  came  to  the  plaintiff.  He  found  for  the 
plaintiff  for  the  sum  of  $7,022.94,  the  value  of  the  ten  bonds  after 
deducting  the  value  of  four  bonds  recovered  from  the  assignees  of 
Berry  and  Company.  The  only  exceptions  taken  by  the  defendants 
were  to  the  refusal  of  the  judge  to  give  the  seven  rulings  asked  for 
by  them. 

1.  The  first  ruling  asked  for  '  could  not  have  been  given,  because 
the  judge  found  as  a  fact  that  all  the  bonds  (except  one)  deposited 
with  the  defendants  as  security  for  the  second  account  were  taken 
by  them  with  notice.  There  can  be  no  question  but  that  the  judge 
was  right  in  ruling  "that  the  act  of  the  defendants  in  taking  the 

*  Thf!  first  rulinj?  asked  for  was  in  these  words:  "  Upon  all  the  evidence  the  plaintiff 
Emma  J.  Varney  is  not  entitled  to  recover,  and  the  verdict  is  to  be  for  the  defendants." 


394  VARNEY    V.    CURTIS.  [CHAP.  I. 

bonds  into  their  possession  from  Symonds  with  notice,  intending  to 
hold  them  as  pledgees,  was  in  itself  an  exercise  of  dominion  over  them 
in  denial  of  the  rights  of  the  true  owner,  and  a  conversion."  There 
was  evidence  which  amply  warranted  the  judge  in  making  the  finding 
of  fact  that  the  defendants  took  these  bonds  with  notice.  Indeed  the 
defendants  have  not  argued  that  there  was  not.  The  exception  to 
the  refusal  to  give  this  ruling  must  be  overruled. 

2.  The  sixteenth  ruling  asked  for  ^  was  rightly  refused  because: 
(first)  as  matter  of  law  the  judge  was  not  bound  to  find  (if  indeed  he 
could  have  found)  that  the  plaintiff  was  careless  in  entrustmg  her 
bonds  to  Symonds  for  safe  keeping;  and  (secondly)  even  if  she  was 
careless  in  so  doing  she  would  not  have  been  neghgent.  She  owed  no 
duty  to  the  defendants  to  keep  her  securities  carefully,  and  so  as 
against  them  she  was  not  negligent  if  she  kept  them  carelessh'.  An 
owner  who  keeps  his  securities  in  a  careless  manner  does  not  lose  his 
property  in  them  nor  his  rights  of  action  founded  thereon.  That  was 
decided  in  Shepard  &  Morse  Lumber  Co.  v.  Eldridge,  171  Mass.  516. 
It  is  to  be  borne  in  mind  that  these  bonds  were  not  indorsed  by  the 
plaintiff,  as  was  the  case  in  Scollans  v.  Rollins,  173  Mass.  275;  s.c. 
179  Mass.  346.  Had  the  plaintiff  entrusted  these  bonds  to  Symonds 
indorsed  by  her  a  different  question  would  have  been  presented. 

3.  The  twenty-first  and  twenty-second  rulings  asked  for  ^  are 
based  on  Loring  v.  Midcahy,  3  Allen,  575,  and  Leonard  v.  Tidd, 
3  Met.  6,  and  the  contention  is  that  this  case  comes  within  those 
decisions. 

It  is  settled  that  where  a  bailee  receives  on  deposit  goods  from  one 
in  possession  but  without  title  to  them,  and  afterwards  restores  them 
to  the  possession  of  the  bailor  in  ignorance  of  the  rights  of  the  true 
owner,  he  is  not  guilty  of  a  conversion.  Loring  v.  Mulcahy,  3  Allen, 
575;  Hill  v.  Hayes,  38  Conn.  532;  Steele  v.  Marsicano,  102  Cal.  666; 
Nelson  v.  Iverson,  17  Ala.  216;  Frome  v.  Dennis,  16  Vroom,  515.  For 

^  The  sixteenth  ruling  asked  for  was  in  these  words:  "16.  If  the  court  finds  upon 
all  the  evidence  that  the  plaintiff  entrusted  the  bonds  in  question  or  any  of  them  to 
George  E.  Symonds  and  gave  him  full  possession  and  control  of  the  same,  and  the  said 
George  E.  Symonds  misappropriated  the  said  bonds  and  gave  them  to  the  defendants 
as  collateral  security  for  certain  purchases  of  stock,  then  the  plaintiffs  were  negligent 
in  their  care  of  the  said  bonds  and  are  estopped  from  claiming  same  or  the  value  of  the 
same  from  the  defendants." 

*  The  twenty-first  and  twenty-second  rulings  asked  for  were  in  these  words: 
"21.  The  delivery  of  the  bonds  to  Colton  &  Company  by  the  defendants  in  accord- 
ance with  the  directions  of  the  plaintiff's  agent,  George  E.  Sjinonds,  was  equivalent 
to  a  return  of  the  said  bonds  to  George  E.  SjTnonds  and  therefore  constructively  a 
return  to  the  plaintiff  and  for  such  bonds  the  plaintiff  is  not  entitled  to  recover,  it 
being  agreed  that  the  bonds  had  not  depreciated  during  the  period  that  the  defendants 
held  the  same. 

"22.  The  delivery  of  the  bonds  to  Berry  and  Company  by  the  defendants  in  accord- 
ance with  the  directions  of  the  plaintiff's  agent,  George  E.  Symonds,  was  equivalent 
to  a  return  of  the  said  bonds  to  George  E.  Symonds  and  therefore  constructively  a 
return  to  the  plaintiff,  and  for  such  bonds  the  plaintiff  is  not  entitled  to  recover,  it 
being  agreed  that  the  bonds  had  not  depreciated  during  the  period  that  the  def  endanta 
held  the  same." 


SECT.  IV.]  VARNET   V.    CURTIS.  395 

other  cases  where  the  temporary  use  of  the  property  of  another 
made  by  a  defendant  acting  in  good  faith  under  a  mistake  of  fact 
has  been  held  or  said  not  to  be  a  conversion,  see  Strickland  v.  Bar- 
rett, 20  Pick.  415;  Wellington  v.  Wentworth,  8  Met.  548;  Spooner  v. 
Manchester,  133  Mass.  270;  Shea  v.  Milford,  145  Mass.  525;  Gurley  v. 
Armstead,  148  Mass.  267. 

It  is  pointed  out  in  Pollock  on  Torts,  374,  in  connection  with  this 
rule,  that  a  bailee  under  those  circumstances  is  estopped  to  deny  the 
title  of  the  bailor.  That  means  that  in  returning  the  goods  to  the 
bailor  the  bailee  does  no  more  than  perform  the  duty  he  owes  to  the 
bailor.  He  cannot  be  guilty  of  a  conversion  for  doing  that. 

In  Leonard  v.  Tidd,  3  Met.  6,  this  principle  was  applied  in  a  case 
where  the  defendants  acting  in  good  faith  received  as  security  for  a 
debt  due  to  them  from  the  pledgor  a  gun,  the  property  of  the  plaintiff, 
which  was  in  the  possession  of  the  pledgor,  and  returned  the  property 
pledged  to  the  wrongful  pledgor  upon  payment  of  the  debt  due  them 
from  him.  For  a  similar  decision  see  Spackman  v.  Foster,  11  Q.  B.  D. 
99.  The  reasoning  on  which  the  decision  in  Spackman  v.  Foster  went 
was  that  although  the  pledgee  in  such  a  case  claims  to  hold  the 
property  as  against  the  wrongful  pledgor  until  the  debt  due  him 
from  the  wrongful  pledgor  is  paid,  so  far  as  appears  he  does  not  claim 
to  hold  the  property  pledged  as  against  the  true  owner.  The  same 
reasoning  was  adopted  in  Laring  v.  Mulcahy,  ubi  supra.  That  is  to 
say,  in  such  a  case,  so  far  as  the  true  owner  is  concerned  the  pledgee 
is  in  possession  under  one  to  whom  the  true  owner  had  given  posses- 
sion, and  by  returning  the  pledged  property  to  the  wrongful  pledgor 
the  pledgee  does  nothing  more  than  perform  the  duty  he  owes  the 
wrongful  pledgor  under  the  circumstances  in  effecting  a  restoration 
of  the  original  statiis  in  quo,  to  wit,  in  putting  back  the  property  into 
the  possession  of  the  wrongful  pledgor  where  originally  it  had  been 
put  by  the  true  owner. 

But  in  the  case  at  bar  the  plaintiff's  bonds,  which  the  defendants 
received  in  good  faith  from  SjTnonds  in  whose  possession  the  plain- 
tiff had  put  them,  were  not  returned  to  Sjinonds.  On  the  contrary 
they  were  delivered  by  Symonds's  direction  to  persons  who  to  the 
defendants'  knowledge  were  lending  money  to  Symonds  on  the  secur- 
ity of  the  bonds.  That  is  to  say,  the  defendants  in  place  of  restoring 
the  bonds  to  Symonds  dehvered  them  to  a  third  person  in  obedience 
to  a  subsequent  act  on  the  part  of  Symonds  which  was  an  act  of 
ownership  and  not  of  mere  possession. 

The  question  whether  under  those  circumstances  the  pledgor  is 
guilty  of  a  conversion  has  not  arisen  in  this  Commonwealth.  In 
Leonard  v.  Tidd,  3  Met.  6,  the  gun  was  not  delivered  by  the  pledgee 
to  the  purchaser  from  the  wrongful  pledgor.  In  that  case  the  wrong- 
ful pledgor  "  took  the  gun  from  a  room  in  the  defendant's  house,  and 
delivered  it  to  Pratt,"  the  purchaser  from  the  wrongful  pledgor.  See 


396  VARNEY    V.    CURTIS.  [cHAP.  I. 

3  Met.  at  p.  7.  That  is  to  say,  the  sale  in  that  case  was  made  by  the 
wrongful  pledgor  and  the  gun  was  taken  from  the  pledgee  by  the 
wrongful  pledgor  and  delivered  by  him  to  the  purchaser.  All  that 
the  defendant  did  was  to  take  the  proceeds  of  the  tortious  sale.  That 
is  not  a  conversion.  See  Policy  v.  Lenox  Iron  Works,  2  Allen,  182.  In 
Parker  v.  Lombard,  100  Mass.  405,  there  was  no  delivery  by  the 
bailee  m.  obedience  to  a  subsequent  act  of  dominion  exercised  by  the 
bailor.  In  that  case  the  bailee  delivered  the  goods  to  the  person  who 
was  entitled  to  receive  them  under  the  instructions  given  him  by  the 
bailor  when  the  original  bailment  was  made.  In  other  words,  that 
was  a  case  where  the  bailee  delivered  the  goods  to  the  person  in  whose 
behalf  the  bailee  was  told  the  bailment  was  made  when  it  was  made. 

The  authorities  on  this  question  outside  of  Massachusetts  are  in 
conflict. 

Blackburn,  J.,  in  answering  the  question  proposed  to  the  judges 
by  the  House  of  Lords  in  Hollins  v.  Fowler,  L.  R.  7  H.  L.  757,  767, 
gave  it  as  his  opinion  that  if  the  bailee  in  such  a  case  "could  have 
been  fixed  with  knowledge  that  more  was  done  than  merely  changing 
the  custody,  and  knew  that  the  company's  servants  [i.e.  servants  of 
the  bailee]  were  transferring  the  property  from  one  who  had  it  in  fact 
to  another  who  was  going  to  use  it  up,  the  question  would  be  nearly 
the  same  as  that  in  the  present  case."  In  the  "present  case"  Black- 
burn, J.'s  answer  to  the  question  put  to  the  judges  was  that  the  de- 
fendant was  guilty  of  a  conversion.  The  decision  in  Hudmon  Broth- 
ers V.  DuBose,  85  Ala.  446,  goes  further.  In  Hudmon  Brothers  v. 
DuBose  it  was  held  that  a  warehouseman  who  delivered  cotton  stored 
with  him  not  to  the  bailor  but  to  the  holder  of  the  storage  receipt 
issued  to  the  bailor  when  the  cotton  was  put  in  storage,  was  guilty 
of  a  conversion  without  its  being  shown  that  knowledge  had  been 
brought  home  to  the  warehouseman  that  more  was  being  done  than 
" merely  changing  the  custody."  Somerville,  J.,  in  delivering  the 
opinion  in  that  case  said  that  what  may  be  for  convenience  called  the 
rule  of  Leonard  v.  Tidd  "does  not  include  a  restoration  of  the  bailor's 
dominion  by  an  act,  the  essential  nature  of  which  is  in  defiance  of 
the  true  owner's  title,  or  the  probable  consequence  of  which  wdll  be 
to  put  the  property  beyond  his  reach." 

On  the  other  hand,  a  contrary  conclusion  was  reached  in  National 
Mercantile  Bank  v.  Rymill,  44  L.  T,  (N.S.)  767,  and  in  Leuthold  v. 
Fairchild,  35  Minn.  99.  In  National  Mercantile  Bank  v.  Rymill,  an 
auctioneer  who  had  received  for  sale  from  one  in  possession  of  the 
same,  horses  and  a  harness,  delivered  them  to  one  who  to  his  (the 
auctioneer's)  knowledge  had  bought  them  of  the  bailor.  In  that  case 
the  auctioneer  received  the  purchase  money  from  the  purchaser  and 
after  deducting  his  commission  paid  the  balance  to  the  bailor.  In 
Leuthold  v.  Fairchild,  a  bank  which  had  discounted  a  draft  to 
which  was  attached  a  bill  of  lading  for  wheat  shipped  to  the  drawee 


SECT.  IV,]  VARNEY   V.    CURTIS.  397 

delivered  the  bill  of  lading  to  the  drawee  on  payment  of  the  draft. 
The  decision  in  National  Mercantile  Bank  v.  Rymill,  44  L.  T.  (N.S.) 
767  (and  not  reported  elsewhere),  was  a  decision  of  the  Court  of 
Appeals  made  in  1881  by  Bramwell,  Brett  and  Cotton,  L.JJ. 
That  case  seems  to  have  been  argued  by  the  plaintiff  solely  on  the 
groand  that  it  was  governed  by  the  decision  in  Cochrane  v.  Rymill, 
40  L.  T.  R.  (N.S.)  744,  where  the  sale  was  made  by  an  auctioneer 
who  had  made  advances  on  the  goods  sold.  The  opinion  of  Black- 
burn, J.,  in  Hollins  v.  Fowler,  uhi  supra,  was  not  alluded  to.  Bram- 
well, L.J.,  in  his  opinion  in  National  Mercantile  Bank  v.  Rymill, 
puts  as  decisive  of  the  case  then  to  be  decided  the  case  of  a  thief  who 
deposits  a  stolen  portmanteau  at  the  cloak  room  of  a  railway  station 
and  gets  it  back  through  an  accompKce  to  whom  he  hands  the  ticket 
which  he  had  received  when  the  portmanteau  was  deposited.  There 
is  a  later  case  to  the  same  effect  in  England  decided  by  Day,  J., 
Turner  v.  Hockey,  56  L.  J.  (Q.  B.)  301  (and  not  elsewhere  reported). 
As  to  these  two  cases  see  Consolidated  Co.  v.  Curtis  &  Son,  [1892] 
1  Q.  B.  495,  501.  The  reasoning  on  which  Leuthold  v.  Fairchild  was 
decided  is  contained  in  this  statement:  "It  [the  bank]  merely  took  a 
hen  upon  it  to  secure  the  drafts,  and,  when  the  lien  was  satisfied, 
surrendered  the  evidence  and  means  of  enforcing  it  to  the  persons 
indicated  by  Young.  That  was  not  an  appropriation  or  assumption 
of  such  dominion  over  the  wheat,  to  the  exclusion  of  the  real  owner, 
as  amounted  to  a  conversion  by  it."  It  is  apparent  that  the  question 
on  which  the  determination  of  these  two  cases  depended  was  not 
considered. 

We  are  of  opinion  that  the  defendants  in  the  case  at  bar  were  not 
guilty  of  a  conversion  when  they  received  in  good  faith  the  plaintiff's 
bonds  (which  they  did  receive  in  good  faith)  as  security  for  the  debts 
due  them  from  SjTnonds.  If  they  had  returned  the  bonds  to  the  pos- 
session of  S\Tnonds  (with  whom  they  originally  found  the  bonds)  on 
being  paid  by  SjTnonds  the  debts  due  them  from  him,  they  would 
have  done  nothing  more  than  perform  the  duty  owed  by  them  as 
pledgees  to  SjTnonds  as  pledgor  in  the  absence  of  knowledge  of  the 
rights  of  Mrs.  Varney,  the  true  owner.  But  they  did  not  return  the 
bonds  to  the  possession  of  Symonds,  as  they  were  bound  to  do  in 
the  absence  of  knowledge  as  to  the  true  ownership,  on  being  paid  the 
debts  due  them  from  him.  On  the  contrary,  under  the  direction  of 
Symonds  they  delivered  the  bonds  to  persons  who  to  their  knowledge 
were  lending  to  Symonds  on  the  security  of  the  bonds  the  amount 
owed  them  by  SjTnonds.  They  knew  that  Symonds  was  exercising 
a  subsequent  act  of  dominion  over  the  bonds;  they  had  an  interest  in 
having  that  act  of  dominion  carried  through;  and  they  aided  Sy- 
monds in  carrying  through  that  act  of  dominion  by  delivering  the 
bonds  to  Colton  and  Company  and  Berry  and  Company  in  order  to 
secure  pajnnent  in  that  way  of  the  debts  owed  them  by  SjTnonds. 


398  VARNEY    V.    CURTIS.  [CHAP.  I. 

The  subsequent  act  of  dominion  was  a  conversion,  and  in  that  con- 
version the  defendants  participated  for  the  purpose  of  forwarding 
their  own  interests.  The  case  therefore  is  not  only  a  stronger  case 
than  Hudmon  Brothers  v.  DuBose,  85  Ala.  446,  where  the  defendant 
had  no  knowledge  and  no  interest,  but  it  is  a  stronger  case  than  the 
case  put  by  Blackburn,  J.,  in  Hollins  v.  Fowler,  L.  R.  7  H.  L.  757, 
where  the  defendants  had  knowledge  but  no  interest.  It  is  also  a 
stronger  case  than  the  case  of  Hiort  v.  Bott,  L.  R.  9  Ex.  86.  In  that 
case  one  Grimmett,  to  defraud  the  plaintiff  of  certain  barley,  pro- 
fessed to  buy  it  on  behalf  of  the  defendant,  to  whom  by  Grimmett's 
direction  it  was  shipped,  deliverable  to  consignor  or  consignee.  After 
the  barley  had  arrived  at  its  destination,  Grimmett  procured  an 
order  for  its  deUvery  from  the  defendant  on  the  plea  that  it  was  sent 
to  him  by  mistake  and  that  such  an  order  would  cure  the  mistake. 
This  was  held  to  be  a  conversion  on  the  ground  that  it  was  an  un- 
authorized act  by  which  the  plaintiff  lost  the  barley.  In  the  words  of 
Bramwell,  B.,  "This  was  assuming  a  control  over  the  disposition 
of  these  goods,  and  a  causing  them  to  be  delivered  to  a  person  who 
deprived  the  plaintiff  of  them."  For  a  similar  decision  see  Knapp  v. 
Guyer,  75  N.H.  397.  In  the  case  at  bar  the  defendants,  by  an  un- 
authorized act,  undertook  to  control  the  disposition  of  the  plaintiff's 
bonds  and  delivered  them  to  persons  who  deprived  the  plaintiff  of 
her  property.  That  makes  them  guilty  of  a  conversion  of  them. 

It  is  not  out  of  place  to  point  out  again  what  before  now  has  been 
said  several  times  (see  for  example  Martin,  B.,  in  Burroughes  v. 
Bayne,  5  H.  &  N.  296;  Bramwell,  B.,  in  Hiort  v.  Bott,  L.  R.  9  Ex. 
86,  90),  namely,  that  the  terms  "  conversion  "  and  "  converting  to  his 
own  use"  are  misleading  and  unfortunate  terms.  As  was  said  by 
Collins,  J.,  in  Consolidated  Co.  v.  Curtis,  [1892]  1  Q.  B.  495,  498, 
"The  difficulty  is  diminished  by  remembering  that  in  trover  the 
original  possession  was  by  a  fiction  deemed  to  be  lawful  (per  Martin, 
B.,  in  Burroughes  v.  Bayne,  5  H.  &  N.  at  p.  301,  and  per  Lord  Mans- 
field, C.J.,  in  Cooper  v.  Chitty,  1  Burr,  at  p.  31),  and  some  act  had 
therefore  to  be  shown  constituting  a  conversion  by  the  defendant  of 
the  chattel  to  his  own  use,  some  act  incompatible  with  a  recognition 
on  his  part  of  the  continuous  right  of  the  true  owner  to  the  dominion 
over  it."  It  was  from  this  allegation  of  a  fictitious  finding  by  the 
defendant  that  the  action  got  its  name  of  trover.  3  Bl.  Com.  152, 
153.  The  declaration  in  trover  and  conversion  alleged  the  ownership 
of  the  plaintiff,  a  "casual"  loss  by  him  and  a  finding  by  the  defend- 
ant. It  then  alleged  that  after  thus  coming  lawfully  into  possession 
of  the  goods  the  defendant  "converted  and  disposed  of  the  said  chat- 
tels to  his  own  use."  See  for  example  2  Chitty,  PI.  (2d  London  ed.) 
371,372.  It  might  perhaps  have  been  better  if  the  terms  "conver- 
sion" and  "converted  to  his  own  use,"  which  were  brought  in  bj'  the 
allegation  of  a  fictitious  loss  and  finding,  had  been  given  up  when  that 


SECT.  ^V^]  ROGERS  V,    HUIE,  399 

allegation  was  given  up,  and  a  plainer  statement  of  a  tortious  act  on 
the  part  of  the  defendant  by  which  the  plaintiff  lost  his  goods  had 
been  substituted. 

We  are  of  opinion  that  the  delivery  of  the  bonds  to  Colton  and 
Company  and  to  Berry  and  Company  were  not  "equivalent  to  a 
return  of  the  said  bonds  to  George  E.  Symonds,"  and  the  twenty- 
first  and  twenty-second  rulings  asked  for  were  properly  refused. 

4.  No  argument  either  at  the  bar  or  on  the  brief  has  been  made  in 
support  of  the  three  other  ruHngs  asked  for.  The  defendants  however 
have  contended  that  they  should  have  been  given.  Under  these  cir- 
cumstances it  is  enough  to  say  that  we  find  that  no  error  was  com- 
mitted by  the  judge  in  refusing  to  adopt  them. 

5.  The  defendants  have  argued  some  points  of  law  not  raised  by 
the  ruhngs  asked  for.  For  that  reason  we  have  not  discussed  them. 
It  is  not  improper  to  add  that  we  should  have  found  that  no  error 
had  been  committed  by  the  judge  had  the  questions  argued  been 
raised. 

Exceptions  overruled. 


ROGERS  V.  HUIE. 

1  Cal.  429.     1851. 

Action  of  trover.  The  plaintiff  alleges  in  his  complaint  that,  on 
the  12th  day  of  December,  A.  D.  1850,  he  was  the  owner  of  twenty- 
nine  kegs  of  butter,  of  the  average  weight  of  twenty-five  pounds 
each,  and  of  the  value  of  thirty  cents  per  pound;  and  also  of  one  hun- 
dred cheeses,  weighing  fifteen  hundred  pounds,  and  worth  twenty 
cents  per  pound;  and  that  the  value  of  the  butter  and  cheese  to- 
gether was  five  hundred  and  seventeen  dollars.  The  complaint  fur- 
ther alleged  that  the  butter  and  cheese  were  taken  away  from  the 
plaintiff  without  his  knowledge  and  consent  by  some  person  or  per- 
sons to  him  unknown,  and  passed  into  the  hands  of  the  defendant, 
an  auctioneer  in  San  Francisco,  who  converted  them  to  his  own  use 
without  the  knowledge  or  consent  of  the  plaintiff. 

A  general  answer  was  put  in  by  the  defendant  denying  the  alle- 
gations of  the  complaint. 

The  cause  was  tried  before  a  jury,  who  rendered  a  verdict  in  favor 
of  the  plaintiff  for  $437.50. 

It  was  estabhshed,  on  the  trial  of  the  cause,  that  the  plaintiff,  who 
was  a  merchant  in  Boston,  shipped  the  butter  and  cheese  in  question 
to  his  agent  at  San  Francisco,  and  that,  on  their  arrival  at  that  place, 
the  agent  had  them  lightered  from  the  ship,  and  deposited  on  shore, 
on  the  9th  day  of  December,  where  they  were  left.  On  the  14th  day 
of  December,  the  agent  went  to  show  them  to  a  customer,  and  found 


400  ROGERS    V.    HUIE.  [CHAP.  I. 

that  they  had  been  carried  away.  They  had,  in  fact,  been  stolen,  and 
taken  by  the  thief  to  the  defendant,  who  was  an  auctioneer,  and  by 
him  sold  in  the  usual  course  of  his  business.  The  proceeds  of  the 
sale,  after  deducting  the  commissions  of  the  defendant,  had  been 
paid  over  to  the  thief.  There  is  no  suspicion  that  the  defendant 
supposed  that  the  property  had  been  stolen,  or  that  he  acted  other- 
wise than  in  perfect  good  faith. 

Bennett,  J.  An  auctioneer  who  receives  and  sells  stolen  property, 
is  liable  for  the  conversion  to  the  same  extent  as  any  other  merchant 
or  individual.  This  is  so  both  upon  principle  and  authority.  Upon 
principle,  there  is  no  reason  why  he  should  be  exempted  from  lia- 
bility. The  person  to  whom  he  sells,  and  who  has  paid  the  amount 
of  the  purchase  money,  would  be  compelled  to  deliver  the  property 
to  the  true  owner  or  pay  him  its  full  value;  and  there  is  no  mora 
hardship  in  requiring  the  auctioneer  to  account  for  the  value  of  the 
goods,  than  there  would  be  in  compelhng  the  right  owner  to  lose 
them,  or  the  purchaser  from  the  auctioneer  to  pay  for  them.  As  a 
general  rule  any  person  who  assumes  and  exercises  a  control  over  the 
property  of  another,  without  right  or  authority,  must  respond  in 
damages  to  the  value  of  the  propert}'';  and  I  see  no  principle  of  policy 
for  the  encouragement  of  trade,  or  for  convenience  in  the  transaction 
of  commercial  business,  under  which  an  auctioneer  should  be  per- 
mitted to  claim  an  exemption  from  the  general  rule. 

Upon  authority  the  case  is  clear.  The  very  point  was  decided  in 
Hoffman  v.  Carew  (20  Wend.  21 ;  and  22  Wend.  285,  s.  c).  That  case 
is  in  all  respects  analogous  to  the  case  at  bar,  and  both  the  supreme 
court  and  the  court  of  errors  held  the  auctioneer  liable.  Senator 
Verplanck,  in  the  court  of  errors  (22  Wend.  319),  spealdng  of  the 
policy  of  the  rule,  uses  the  following  language:  "In  this  instance, 
the  ruin  falls  hardly  upon  innocent  and  honorable  men;  but  looking 
to  general  considerations  of  legal  policy,  I  cannot  conceive  a  more 
salutary  regulation  that  that  of  obUging  the  auctioneer  to  look  well 
to  the  title  of  the  goods  which  he  sells,  and,  in  case  of  feloniously 
obtained  property,  to  hold  him  responsible  to  the  buyer  or  the  true 
owner,  as  the  one  or  the  other  may  happen  to  suffer.  Were  our  law 
otherwise  in  this  respect,  it  would  afford  a  facility  for  the  sale  of 
stolen  or  feloniously  obtained  goods,  which  could  be  remedied  in  no 
way  so  effectually  as  by  a  statute  regulating  sales  at  auction,  on  the 
principles  of  the  law  as  we  now  hold  it." 

Note.  —  See,  accord,  Coles  v.  Clark,  3  Cush.  (Mass.)  399;  Kearney 
V.  Clutton,  101  Mich.  106;  Consolidated  Co.  v.  Curtis,  [1892]  1  Q.  B. 
495.  See,  contra,  Frizzell  v.  Rundle,  88  Tenn.  396. 

Similarly  as  to  a  stock-broker.  Swim  v.  Wilson,  90  Cal.  126.  And 
the  agent  of  a  tenant  in  common  who  sells  the  whole  chattel.  Per- 
minter  v.  Kelly,  18  Ala.  716.   And  the  agent  of  a  person  having  no 


SECT.  IV.]  SPOONER    V.    HOLMES.  401 

right  in  the  chattel.  Pool  v.  Adkissoti,  1  Dana  (Ky.)  110;  Kimball 
V.  Billings,  55  Me.  147. 


PARKER  V.  GODIN. 

2  Strange,  813.      1728. 

Satur,  a  bankrupt  at  the  time  of  his  going  off,  left  some  plate 
with  his  wife,  who  in  order  to  raise  money  upon  it  delivered  it  to  her 
servant,  who  went  along  ^vith  the  defendant  to  the  door  of  Mr. 
Woodward  the  banker,  and  there  the  defendant  took  the  plate  into 
his  hands  and  went  into  the  shop  and  pawned  it  in  his  own  name, 
gave  his  own  note  to  repay  the  moneij,  and  imm.ediately  upon  receipt  of 
it  went  back  to  the  bankrupt's  wife,  and  delivered  the  money  to  her. 
And  in  trover  for  the  plate  the  jury  (considering  the  defendant  acted 
only  as  a  friend,  and  that  it  would  be  hard  to  punish  him)  found  a 
verdict  for  the  defendant.  But  upon  application  to  the  court  a  new 
trial  was  granted,  upon  the  foot  of  its  being  an  actual  conversion 
in  the  defendant,  notwithstanding  he  did  not  apply  the  money  to 
his  own  use.  And  upon  a  second  trial  the  plaintiff  obtained  a  verdict 
for  the  value  of  the  plate. 

Note. — Perkins  v.  Ladd,  114  Mass.  420.  The  defendant  sold 
perishable  property  which  had  belonged  to  a  deceased  soldier,  at 
the  direction  of  his  widow,  and  remitted  the  proceeds  of  the  sale  to 
her,  without  charge  for  his  sem-ices.  The  administrator  of  the  estate 
of  the  deceased  soldier  complained  of  this  act,  as  a  conversion  of  the 
property,  but  the  court  held  that  the  defendant  had  done  no  wrong. 


SPOONER  V.  HOLMES. 

102  Mass.  503.     1869. 

Tort  to  recover  the  value  of  certain  interest  coupons  of  United 
States  bonds,  payable  to  bearer  in  gold,  and  alleged  to  have  been  con- 
verted by  the  defendant  to  his  own  use.  Trial  in  the  superior  court 
before  Reed,  J.,  who  allowed  a  bill  of  exceptions  which  stated  the 
case  as  follows :  — 

"The  plaintiff's  evidence  tended  to  show  that  the  coupons  in  ques- 
tion were  stolen  from  the  plaintiff  bj^  a  servant  in  his  employ,  and 
by  that  servant  given  to  her  sister,  who  was  a  servant  in  the  family 
of  the  cashier  of  one  of  the  national  banks  in  Plymouth;  and  that  the 
defendant  purchased  the  coupons  of  the  servant  in  the  cashier's 
family,  and  under  circumstances  which  would  naturally  excite  sus- 


402  SPOONER    V.    HOLMES.  [CHAP.  I. 

picion  that  they  were  stolen.  The  defendant's  evidence  tended  to 
show  that  they  were  handed  to  him  merely  to  get  them  changed, 
that  there  were  no  suspicious  or  unusual  circumstances  attending  the 
transaction,  and  that  he  was  simply  the  agent  of  the  servant. 

"Among  the  evidence  introduced  by  the  defendant  was  a  letter 
received  by  him  from  Nova  Scotia,  puiporting  to  be  from  the  said 
servant  of  the  cashier,  she  having,  before  that  time,  gone  thither. 
In  said  letter  were  inclosed  two  of  the  coupons  in  question,  which 
were  sold  by  the  defendant.  The  plaintiff  objected  to  the  introduc- 
tion of  this  letter  in  evidence  without  proof  of  the  handwriting;  but 
the  judge  ruled  it  to  be  admissible  without  such  proof,  for  the  pur- 
pose of  showing  the  manner  and  circumstances  of  the  defendant's 
receiving  the  two  coupons  which  it  contained. 

"Some  of  the  coupons  were  sold  by  the  defendant  to  the  Plymouth 
National  Bank,  some  were  sold  to  brokers  in  Boston,  and  one  was 
sold  to  a  person  from  Lynn,  with  whom  the  defendant  traded,  and 
who  happened  to  be  at  his  shop  in  Plymouth,  at  the  same  price  which 
he  had  received  for  others  from  the  bank.  The  evidence  tended  to 
show  that  the  defendant  received  pay  for  this  coupon  in  goods  from 
the  Lynn  man,  and  paid  the  servant  the  price  thereof  in  money. 

"The  judge  instructed  the  jury,  among  other  things,  as  to  the 
rules  of  law  applicable  in  cases  of  goods  and  merchandise  stolen  or 
otherwise  lost,  and  coming  into  the  possession  of  persons  other  than 
the  true  owners,  in  terms  not  objected  to;  but  then  ruled  and  in- 
structed the  jury  that  the  same  rules  did  not  apply  to  money  or  the 
currency  of  the  country,  and  did  not  apply  to  such  coupons  as  those 
in  question,  which  to  some  extent  formed  a  part  of  the  currency; 
that  the  jury  were  to  consider  whether  the  defendant  purchased  the 
coupons  in  question  or  whether  he  merely  received  them  to  sell  for 
the  servant,  and  acted  in  regard  to  them  as  her  agent;  that,  if  they 
found  the  former  to  be  true,  and  that  the  defendant  purchased  them 
under  such  circumstances  as  would  have  put  a  person  of  ordinary 
prudence  on  his  guard,  and  would  have  led  such  a  person  to  re- 
fuse them,  they  should  find  for  the  plaintiff;  that,  if  they  found  that 
the  defendant  was  acting  as  agent  merely,  to  get  the  coupons  turned 
into  money  for  the  servant,  then  the  plaintiff  could  not  recover,  un- 
less he  satisfied  the  jury  that  the  defendant  either  knew  that  the 
servant  had  come  dishonestly'  by  them,  or  might  so  have  known 
except  for  his  gross  negligence;  and  that  gross  negligence  was  the 
carelessness  of  a  very  careless  person. 

"The  plaintiff  requested  the  judge  to  instruct  the  jury  that  paying 
out  the  coupons  in  his  business,  or  exchanging  them  for  goods,  was 
inconsistent  with  agency,  unless  the  articles  received  in  exchange 
were  delivered  to  the  principal;  and  that,  to  entitle  the  defendant 
to  the  benefit  of  the  defence  of  agency,  if  there  were  any  suspicious 
facts  or  circumstances  which  came  to  his  knowledge,  he  must  have 


SECT.  IV.]  SPOONER    V.    HOLMES.  403 

disclosed  them  or  disclosed  his  agency.  The  judge  declined  to  give 
either  of  these  instructions. 

"The  verdict  was  for  the  defendant,  and  the  jury,  in  reply  to  a 
question  of  the  judge,  said  they  found  the  defendant  to  have  been 
acting  as  agent." 

Gray,  J.  This  is  an  action  of  tort,  in  the  nature  of  trover,  for  cer- 
tain coupons  of  United  States  bonds,  alleged  in  the  declaration  to  be 
the  property  of  the  plaintiff  and  to  have  been  converted  by  the  de- 
fendant to  his  own  use.  The  undisputed  evidence  at  the  trial  showed 
that  the  bonds  had  belonged  to  the  plaintiff,  and  had  been  stolen 
from  him,  and  delivered  by  one  who  received  them  from  the  thief 
to  the  defendant,  and  by  him  sold  and  turned  into  money,  which 
he  is  admitted  to  have  paid  over  to  his  principal.  But  the  jury  have 
found  that  in  so  doing  the  defendant  acted  only  as  agent  of  the  per- 
son from  whom  he  received  them,  and  did  not  know,  and  was  not 
guilt}^  of  gross  negligence  in  not  knowing,  that  that  person  had  come 
dishonestly  by  them.  It  does  not  appear  that  the  plaintiff  ever  de- 
manded of  the  defendant  either  the  coupons  or  their  proceeds,  or 
that  the  defendant  personally  derived  any  benefit  from  his  acts. 
The  principal  question  in  the  case  is,  whether,  under  these  circum- 
stances, he  is  liable  in  this  action.  This  is  an  important  question, 
and  has  received  great  consideration  from  the  court. 

An  action  of  tort  for  the  conversion  of  personal  property,  under 
our  present  system  of  pleading,  requires  such  evidence  to  support 
it  as  would  have  proved  a  conversion  in  an  action  of  trover  at 
common  law;  and  cannot  be  maintained  without  proof  that  the  de- 
fendant either  did  some  positive  wrongful  act  with  the  intention 
to  appropriate  the  property  to  himself  or  to  deprive  the  rightful 
owner  of  it,  or  destroyed  the  property.  Fouldes  v.  Willoughhy,  8  AI. 
&  W.  540;  Heald  v.  Carey,  11  C.  B.  977;  Gen.  Sts.  c.  129,  §  81 ;  Robin- 
son v.  Austin,  2  Gray,  564;  Loring  v.  Mulcahy,  3  Allen,  575;  Parker 
V.  Lombard,  100  Mass.  405.  In  the  last  case,  Mr.  Justice  Hoar  says 
that  if  a  bailee,  being  intrusted  with  the  possession  merely,  transfers 
the  possession  according  to  the  directions  of  the  person  from  whom 
he  received  it,  without  notice  of  any  better  title,  and  without  under- 
taking to  convey  any  title,  this  does  not  appear  to  have  been  held 
any  evidence  of  a  conversion ;  and  cites  Strickland  v.  Barrett,  20  Pick. 
415,  and  Leonard  v.  Tidd,  3  Met.  6.  So  where  chattels  were  deliv- 
ered by  the  owner  to  a  bailee,  with  the  right  to  purchase  them  by 
paying  a  certain  price,  so  that  he  had  the  actual  legal  and  rightful 
possession,  although  he  had  not  performed  the  condition  on  which 
he  was  to  have  the  absolute  title,  and  he  sold  them  to  a  third  person, 
who  resold  them  before  any  demand  made  upon  him  and  without 
notice  of  the  agreement  between  his  vendor  and  the  original  owner, 
he  was  held  not  to  be  liable  to  the  latter  in  trover.  Vincent  v.  Cor- 
nell, 13  Pick.  294.  See  also  Day  v.  Bassett,  ante,  445.  And  trover  will 


404  SPOONER    V.    HOLMES.  [cHAP.  I, 

not  lie  against  a  servant  for  taking  goods  by  his  master's  command 
and  for  his  master's  use,  when  the  command  is  not  to  do  an  apparent 
wrong,  and  the  servant's  possession  is  lawful.  Bui.  N.  P.  47.  Powell 
V.  Hoyland,  6  Exch.  67. 

In  the  case  of  a  sale  of  goods,  indeed,  the  purchaser  is  bound  to 
look  to  his  title,  and,  if  he  obtains  them  from  one  who  is  not  the  law- 
ful owner  or  his  authorized  agent,  cannot  hold  them  against  him. 
2  Kent  Com.  (6th  ed.)  324.  If  the  goods  have  been  stolen,  the  prop- 
erty does  not  pass  by  delivery,  and  a  person  who  derives  his  title 
from  the  thief  gains  no  rights  as  against  the  lawful  owner,  and  if  he 
either  refuses  upon  demand  to  deliver  them  up,  or  sells  them  and 
turns  them  into  money,  or  otherwise  converts  them  to  his  own  use, 
he  is  liable  to  the  lawful  owner  in  trover.  Dame  v.  Baldwin,  8  Mass. 
518;  Heckle  v.  Lwrvey,  101  Mass.  344.  Upon  this  principle,  it  is  held 
that  an  auctioneer,  who  receives  and  sells  stolen  goods,  not  knowing 
nor  having  reason  to  believe  that  they  were  stolen;  or  a  person  who 
in  good  faith  buys  a  stolen  horse,  and  afterwards  exercises  dominion 
over  him  by  letting  him  to  a  third  person;  is  liable  to  the  rightful 
owner  in  trover,  without  a  previous  demand.  Hoffman  v.  Carow, 
22  Wend.  285;  Coles  v.  Clark,  3  Gush.  399;  Gilmore  v.  Newton,  9 
Allen,  171.  Yet  even  in  the  case  of  stolen  goods,  a  mere  naked  bailee, 
who  does  no  act,  and  has  no  intent,  to  convert  them  to  his  own  use, 
or  withhold  them  from  the  owner,  and,  before  any  demand  made 
upon  him,  delivers  them  back  to  the  person  from  whom  he  received 
them,  is  not  guilty  of  a  conversion,  although  he  knew  that  they  were 
stolen.  Loring  v.  Mulcahy,  3  Allen,  575. 

But,  in  the  opinion  of  a  majority  of  the  court,  the  coupons  in  ques- 
tion do  not  stand  upon  the  same  ground  as  chattels.  They  were 
negotiable  promises  for  the  pa3,Tnent  of  money,  issued  by  the  gov- 
ernment, payable  to  bearer  and  transferable  by  mere  delivery,  with- 
out assignment  or  indorsement.  They  are  therefore  not  to  be  con- 
sidered as  goods,  but  as  representatives  of  money,  and  subject  to 
the  same  rules  as  bank  bills  or  other  negotiable  instruments  paj'able 
in  money  to  bearer.  Wookey  v.  Pole,  4  B.  &  Aid.  1;  Gorgier  v.  Mie- 
ville,  4  D.  &  R.  641;  s.  c.  3  B.  &  C.  45.  Commonwealth  v.  Emigrant 
Industrial  Savings  Bank,  98  Mass.  12.  The  rule  of  caveat  emptor  does 
not  apply  to  them.  It  is  now  well  settled  that  the  bearer  of  a  bank 
bill  which  has  been  stolen  from  the  bank  may  recover  the  amount 
from  the  bank,  unless  it  is  proved  that  he  did  not  take  it  in  good 
faith  and  for  valuable  consideration ;  and  that  his  knowledge  of  sus- 
picious circumstances  is  immaterial,  unless  amomiting  to  proof  of 
want  of  good  faith.  Worcester  County  Bank  v.  Dorchester  &  Milton 
Bank,  10  Gush.  488;  TT'^er  v.  Dorchester  &  Milton  Bank,  11  Gush.  51; 
Raphael  v.  Bank  of  England,  17  G.  B.  161.  And,  according  to  the 
great  weight  of  authority,  the  same  rule  applies  to  bills  of  exchange 
or  promissory  notes  payable  to  bearer.  Goodman  v.  Simonds,  20 
How.  343. 


3ECT.  rV'.]  SPOONER    V.    HOLMES.  405 

The  jury  have  found  that  the  defendant  took  these  coupons  in 
.-^^ood  faith,  without  gross  negligence,  and  as  agent  of  his  employer. 
He  thus  acquired  a  lawful  possession  of  them,  which  was  no  evidence 
of  a  conversion.  He  then,  before  any  demand  or  notice  from  the 
rightful  owner,  transferred  them  by  delivery,  and  exchanged  them 
for  money,  the  amount  of  which  he  paid  over  to  his  employer.  This 
case  does  not  present  the  question  whether  the  defendant  could  have 
been  held  liable  to  the  rightful  o\\Tier  for  the  coupons  or  the  proceeds 
while  in  his  own  hands,  nor  whether  he  could  be  held  to  have  paid 
value  for  them.  The  single  question  is,  whether  he  has  been  guilty 
of  a  wrongful  conversion;  and,  considering  the  nature  of  the  instru- 
ments, and  the  fact  that  the  defendant  was  acting  in  good  faith, 
without  gross  negligence,  as  agent  only,  \\ithout  himself  receiving 
any  benefit  from  the  transaction,  a  majority  of  the  court  is  of  opin- 
ion that  neither  taking  the  coupons  by  delivery,  transferring  them 
by  delivery,  nor  pajdng  over  the  proceeds  to  his  employer,  consti- 
tuted a  conversion  for  which  he  can  be  held  liable  in  an  action  of 
tort  in  the  nature  of  trover.  Addison  on  Torts  (3d  ed.)  317.  The 
instructions  to  the  jur>'  were  therefore  quite  favorable  enough  to  the 
plaintiff. 

The  letter  admitted  against  the  objection  of  the  plaintiff  was  com- 
petent evidence  of  the  mamier  in  which  and  the  circumstances  under 
which  the  defendant  received  the  coupons,  although  it  did  not  of 
itself  prove  that  it  was  written  by  his  employer. 

Exceptions  overruled. 

Note.  —  In  Kimball  v.  Billings,  55  Me.  147,  the  court  said  (p. 
151):  "It  is  no  defence  to  an  action  of  trover  that  the  defendant 
acted  as  the  agent  of  another.  If  the  principal  is  a  wrongdoer,  the 
agent  is  a  wrongdoer  also.  A  person  is  guilty  of  a  conversion  who 
sells  the  property  of  another,  without  authority  from  the  owner,  not- 
withstanding he  acts  under  the  authority  of  one  claiming  to  be  the 
owTier,  and  is  ignorant  of  such  person's  want  of  title.  Story  on  Agenc;, , 
§§  311  and  312,  and  authorities  there  cited;  Coles  v.  Clark,  3  Cush. 
399.  If,  therefore,  it  be  true,  as  the  defendant  says,  that,  in  selling 
the  bonds  sued  for  in  this  case,  he  acted  as  the  agent  or  servant  of 
Mrs.  Witham,  and  had  no  knowledge  or  suspicion  that  she  was  not 
the  true  owner  of  them,  these  facts  constitute  no  defence  to  the  suit. 
Mrs.  Witham  could  not  secure  to  him  immunity  for  an  act  which 
she  could  not  lawfully  do  herself.  Nor  is  it  any  defence  that  the 
property  sold  was  government  bonds  payable  to  bearer.  The  hona 
fide  purchaser  of  a  stolen  bond  payable  to  bearer,  might  perhaps 
defend  his  title  against  even  the  true  owner.  But  there  is  no  rule  of 
law  that  secures  immunity  to  the  agent  of  the  thief  in  such  cases; 
nor  to  the  agent  of  one  not  a  hona  fide  holder.  The  evidence  in  this 
case  satisfies  us  that  Mrs.  Witham  was  not  a  hona  fide  holder;  that 


406  HOLLINS    V.    FOWLER.  [CHAP.  I. 

she  received  the  bonds  well  knowing  that  they  had  been  stolen,  if 
she  did  not  in  fact  procure  the  theft  to  be  committed.  The  defend- 
ant took  the  bonds  into  his  possession,  and,  as  her  agent  or  servant, 
sold  them." 


HOLLINS  V.  FOWLER. 

L.  R.  7  H.  L.  757.     1875. 

This  was  an  appeal  on  a  case  stated,  on  which  the  Court  of  Queen's 
Bench  had  given  judgment  for  Fowlers,  the  plaintiffs  in  the  action, 
which  judgment  had  been  affirmed  in  the  Exchequer  Chamber,  Law 
Rep.  7  Q.  B.  616. 

Fowler  &  Co.  were  merchants  at  Liverpool.  Hollins  &  Co.  car- 
ried on  the  business  of  cotton  brokers  there. 

In  December,  1869,  Fowler  &  Co.  instructed  their  brokers,  Messrs. 
Rew,  to  sell  for  them  thirteen  bales  of  cotton.  A  person  named 
Hill,  a  clerk  to  H.  K.  Bayley,  a  cotton  broker  at  Liverpool,  pro- 
posed a  purchase  on  his  master's  account.  IMessrs.  Rew  refused  to 
sell  unless  the  name  of  a  responsible  person  was  given  as  the  pur- 
chaser. Hill  then  said  that  Bayley  was  bu\'ing  as  broker  for  Thoma3 
Seddon,  of  Bolton.  The  incjuiries  as  to  Mr.  Seddon  beingquite  satisfac- 
tory, Messrs.  Rew  forwarded  to  Fowlers,  their  principals,  a  sold  note, 
in  these  tenns : — "Liveipool,Dec.  18, 1869.  Messrs.  Fowler  Brothers. 
We  have  this  day  sold  on  your  account  the  undermentioned  cotton." 
Then  came  the  description,  "Thirteen  bales  —  American  —  at  12c?., 
per  Minnesota,"  and  the  buyer's  name  was  given  thus:  "Thomas 
Seddon,  per  H.  K.  Bayley."  The  payment  was  to  be  "cash  within 
ten  days,  less  1|  per  cent  discount. "  A  counterpart  of  this  note  was 
sent  to  Bayley  himself.  On  the  same  day  Bayley  sent  to  Messrs.  Rew 
a  sampling  and  delivery  order,  and  the  bales  were  delivered  to  him, 
and  removed  to  his  warehouse.  On  the  same  day,  also,  Messrs.  Rew 
sent  to  Bayley  the  following  note:  "  Mr.  Thomas  Seddon,  per  IMessrs. 
H.  K.  Bayley  &  Co.  Bought  from  Fowler  Brothers,  per  Rew  &  Free- 
man, brokers,  13  bales  American  cotton,  ex  Minnesota,  12c?.  per  lb., 
subject  to  the  rules  and  regulations  of  the  Liverpool  Cotton  Bro- 
kers' Association.  Payment  in  cash,  within  ten  days,  less  1|  per  cent 
discount." 

On  the  23rd  of  December,  H.  K.  Bajdey,  being  thus  in  possession 
of  the  cotton,  offered  the  same  to  Francis  Hollins  (one  of  the  defend- 
ants), who  consented  to  purchase  the  thirteen  bales  at  ll^c?.  per 
pound,  and  who  purchased  at  the  same  time  twenty-five  other  bales 
of  cotton  from  H.  K.  Bayley  on  the  same  terms.  Messrs.  Hollins, 
under  the  usual  form  of  order,  sampled  the  cotton  on  the  same  day. 
They  had  on  that  morning  received  a  message  from  Messrs.  Micholls, 


SECT.  rV.]  HOLLINS    V.    FOWLER.  407 

cotton  spinners  at  Stockport  (for  whom  they  were  in  the  habit  of  pur- 
chasing cotton),  stating  that  on  that  day  Mr.  INIicholls  would  be  in 
Liverpool  to  purchase  cotton  through  the  Messrs.  Hollins,  and  those 
gentlemen  had  bought  the  cotton  from  H.  K.  Bayley  belie\ang  it  to 
be  of  the  sort  which  Alessrs.  MichoUs  would  require.  On  examining 
the  cotton,  Mr.  Micholls  agreed  to  take  it.  Messrs.  Hollins  were  in 
the  habit  of  thus  bming  cotton  in  the  belief  that  their  customers 
would  take  it.  If  any  particular  customer  did  not  take  to  the  cotton 
thus  speculatively  purchased  for  him,  Messrs.  Hollins  disposed  of  it 
to  some  other  customer.  In  the  latter  part  of  the  23rd  of  December, 
Bayley  received  a  delivery  order  in  these  temis:  ''Please  deliver  the 
bearer  .  .  .  cotton,  ex  Minnesota,  at  llf  rf.  per  lb.,  bought  this  day  for 
Micholls  &  Co.  Francis  HolUns  &  Co."  The  thirteen  bales  were  de- 
livered on  the  following  morning  to  Messrs.  Hollins,  by  whom  they 
were  at  once  forwarded  to  Micholls  &  Co.,  at  Stockport.  Bayley 
received  the  price  of  the  cotton  from  Hollins  &  Co.,  which  was  re- 
paid by  Micholls  &  Co.,  together  vrith  a  sum  for  commission  and 
porterage,  the  defendants,  Messrs.  Holhns,  not  obtaining  a  profit 
on  the  cotton,  but  merely  recei\'ing  a  broker's  commission  on  its 
purchase. 

IMessrs.  Fowler  not  having  received  pajonent  for  the  cotton  at  the 
stipulated  time  (ten  days),  applied  to  Mr.  Seddon,  and  then  learnt 
that  he  had  never  employed  H.  K.  Bayley  to  purchase  cotton  for 
him.  Application  was  then  made  to  Messrs.  Hollins  for  the  bales 
of  cotton,  when  the  answer  given  was,  "the  cotton  was  bought  by 
one  of  our  spinners,  Messrs.  Micholls  &  Co.,  for  cash,  and  has  been 
made  into  yarn  long  ago,  and  as  everything  is  settled  up,  we  regret 
we  cannot  render  your  client  anj'  assistance."  The  action  for  trover 
was  afterwards  brought. 

The  cause  was  heard  before  jNIr.  Justice  ^YILLES,  at  the  Livei-pool 
Spring  Assizes,  1870,  when  the  facts  above  stated  ha\'ing  been  proved, 
the  learned  judge  left  two  questions  to  the  jury:  first,  whether  the 
thirteen  bales  in  question  had  been  bought  by  the  defendants  as 
agents  in  the  course  of  their  business  as  brokers;  and,  secondly, 
whether  they  dealt  with  the  goods  as  agents  for  their  principals. 
Both  questions  were  answered  in  the  affirmative,  and  ]\Ir.  Justice 
WiLLES  then  directed  the  verdict  to  be  entered  for  the  defendants, 
reserving  leave  to  the  plaintiffs  to  move  to  enter  the  verdict  for  them. 

A  rule  was  afterwards  obtained  for  that  pui-pose,  and  on  the  25th 
of  November,  1870,  was  made  absolute.  On  appeal  to  the  Exchequer 
Chamber,  the  judges  were  equally  divided  in  opinion,  and  so  the 
judgment  of  the  court  below  stood  affirmed. 

This  appeal  was  then  brought. 

Mr.  Justice  Blackburn:  My  Lords,  it  appears  from  the  state- 
ment in  the  case  that  Fowlers,  the  plaintiffs,  had  delivered  into  the 
actual  custody  of  Bayley,  a  broker,  thirteen  bales  of  cotton,  their 


408  HOLLINS    V.    FOWLER.  [CHAP.  I. 

property,  they  believing  that  they  had  sold  these  bales  to  Seddon, 
through  Bayley,  as  Seddon's  broker,  after  they  had  refused  to  trust 
Bayley  himself;  and  beheving  that  Bayley  was  the  agent  of  Seddon 
to  receive  delivery;  so  that  Fowlers  thought  that  they  were  trans- 
ferring the  property  to  Seddon,  but  were  mistaken,  as  in  fact  Bay- 
ley  had  no  authority  from  Seddon  either  to  purchase  or  to  take 
delivery. 

Under  such  circumstances  the  property  and  legal  right  to  the  pos- 
session remained  in  Fowlers,  and  Ba^dey  could  not  (except  by  a  sale 
in  market  overt)  confer  on  any  one,  however  innocent,  a  title  supe- 
rior to  his  own.  He  could  not  do  it  under  the  Factors  Acts,  because 
he  was  not  intrusted  by  the  plaintiffs  as  their  agents;  nor  could  he 
do  it  as  being  a  person  in  whom  the  property  had  vested,  subject  to 
being  divested  by  the  plaintiffs,  for  no  property,  even  defeasible,  ever 
passed  from  the  plaintiffs,  as  there  never  was  any  contract  with  any 
one,  though  they  erroneously  thought  there  was  one  with  Seddon. 

These  points  were  decided,  as  I  think  rightly,  in  the  case  of  Hard- 
man  V.  Booth,  1  H.  &  C.  803. 

From  the  terms  of  reservation  (set  out  in  the  note  to  the  report  of 
the  present  case),  it  appears  that  the  defendant  had  an  opportunity 
to  have  that  case  reviewed  in  a  court  of  appeal,  if  so  advised,  for  it 
is  said  that,  "The  defendants  be  at  liberty  to  argue,  if  necessary, 
that  the  sale  by  Bayley  under  the  circumstances  gave  a  good  title 
to  a  bond  fide  purchaser  for  value  without  notice."  The  Court  of 
Queen's  Bench,  being  bound  by  the  decision  of  a  court  of  co-ordi- 
nate jurisdiction,  could  not  so  hold;  and  the  defendants  have  not 
raised  the  point  for  a  court  of  appeal. 

I  proceed  to  state  the  farther  facts. 

Hollins,  the  defendants,  as  brokers,  acting  for  Messrs.  Micholls, 
and  Messrs.  Micholls,  as  customers,  acting  through  the  defendants 
as  brokers,  dealt  with  Bayley  in  a  manner  which  would  have  been 
quite  right,  if  Bayle}^  had  been  an  honest  man  or,  even  a  dishonest 
man,  if  intrusted  by  the  plaintiffs  with  the  possession  of  the  goods, 
as  an  agent,  for  sale. 

And  the  defendants  and  Micholls  were  both  innocent  of  any  knowl- 
edge of  any  infirmity  in  Bayley's  title,  and  not  only  were  they  inno- 
cent, but  I  think  there  is  nothing  amounting  even  to  evidence  of 
negligence  on  the  part  of  the  defendants  in  dealing  with  Bayley  with- 
out farther  inquiry,  nor,  a  fortiori,  in  Micholls  who  trusted  the  defend- 
ants to  act  for  him,  and  dealt  with  Bayley  because  the  defendants 
selected  him. 

Under  those  circumstances,  your  Lordships  ask  the  question, 
whether  the  plaintiffs  were  entitled  to  have  a  verdict  entered  for 
them  for  the  value  of  the  thirteen  bales  of  cotton. 

And  I  answer  that  question  in  the  affirmative.  Hov/ever  hard  it 
may  be  on  those  who  deal  innocently  and  in  the  ordinary  course  o/ 


SECT.  IV.]  HOLLINS    V.    FOWLER.  409 

business  with  a  person  in  possession  of  goods,  yet,  as  long  as  the  law, 
as  laid  down  in  Hardman  v.  Booth,  1  H.  &  C.  803,  is  unimpeached,  I 
think  it  is  clear  law,  that  if  there  has  been  what  amounts  in  law  to 
a  conversion  of  the  plaintiffs'  goods,  by  any  one,  however  innocent, 
that  person  must  paj'  the  value  of  the  goods  to  the  real  owners,  the 
plaintiffs.  See  Stephens  v.  Elwall,  4  M.  &  S.  259,  and  Garland  v.  Car- 
lisle, 4  CI.  &  F.  693. 

And,  accordingly,  I  think  it  has  not  been  disputed  by  any  one, 
that  if  the  plaintiffs  had  sued  Micholls,  who  has  worked  this  cotton 
up  into  yarn,  Micholls  must  have  had  judgment  against  him  for  the 
value  of  the  cotton,  and  would  be  hable  to  pay  the  price  over  again, 
though  he  honestly  transmitted  the  price  to  the  defendants  Hollins, 
who  honestly  handed  it  to  Bayley. 

And  I  take  it  that  if  the  defendants  have  done  what  amounts 
in  law  to  a  conversion,  they  also  must  be  Hable  to  pay  the  plain- 
tiffs. 

It  is  hard  on  them,  I  agree,  but  I  do  not  think  it  is  harder  than  it 
would  have  been  on  Micholls.  Indeed,  I  think,  that  if  the  plaintiffs 
were  told  that  thej^  had  recourse,  at  their  option,  against  either  the 
broker  or  the  spinner  they  might,  without  any  obvious  injustice, 
have  said:  Then  make  the  broker  pay,  for  he  went  to  Bayley's,  so 
that  if  there  is  any  fault  it  is  his. 

But  we  cannot  act  on  any  notions  of  hardship. 

When  a  loss  has  happened  through  the  roguery  of  an  insolvent, 
it  must  always  fall  on  some  innocent  party;  and  that  must  be  a  hard- 
ship. Had  the  Legislature  thought  fit  to  make  a  sale  in  the  cotton 
market  at  Liverpool  equivalent  to  a  sale  in  market  overt,  the  loss 
would  have  fallen  on  the  plaintiffs.  As  it  is  it  falls  on  any  one  who 
has  done  what  the  law  esteems  a  conversion. 

We  must,  I  apprehend,  in  such  cases  look  only  to  the  question, 
whether  on  the  established  principles  of  law  the  complaining  party 
makes  out  that  the  loss  should  fall  on  the  innocent  defendant  rather 
than  on  himself,  the  equally  innocent  plaintiff. 

If,  as  is  quite  possible,  the  changes  in  the  course  of  business  since 
the  principles  of  law  were  established  make  them  cause  great  hard- 
ships or  inconvenience,  it  is  the  province  of  the  Legislature  to  alter 
the  law.  That  has  been  done  to  a  very  considerable  extent  by  the 
Factors  Acts,  and  it  may  be  expedient  to  extend  that  alteration 
farther,  but  those  Acts  have  not  as  yet  been  extended  so  far  as  to 
embrace  the  case  of  any  one,  whether  as  broker  or  otherwise,  deal- 
ing with  a  person  in  the  position  of  Bayley  in  this  case.  And  I  appre- 
hend your  Lordships  will  not,  in  your  judicial  capacity,  depart  from 
the  established  principles  of  law  to  meet  the  hardship  of  a  particular 
case,  even  if  you  were  so  convinced  of  that  hardship  as  to  be  willing 
in  your  legislative  capacity  to  concur  in  a  change  of  the  law  in  future. 
But  this  leaves  open  what  I  take  it  is  the  real  question  in  this  case, 


410  HOLLINS    V.    FOWLER.  [CJIAP.  I. 

viz.,  whether  what  the  defendants  did  amounts  on  the  established 
principles  of  law  to  a  conversion. 

I  own  that  it  is  not  always  easy  to  say  what  does  and  what  doef 
not  amount  to  a  conversion.  I  agree  with  what  is  said  by  my  Brother 
Brett,  in  his  judgment  below,  that  in  all  cases  where  we  have  to 
apply  legal  principles  to  facts,  there  are  found  many  cases  about 
which  there  can  be  no  doubt,  some  being  clear  for  the  plaintiff  and 
some  clear  for  the  defendant,  and  that  the  difficulties  arise  in  doubt- 
ful cases  on  the  border  line  between  the  two. 

I  think  many  cases  which  at  first  seem^  difficult  are  solved  if  the 
nature  of  the  action  is  remembered. 

Lord  Mansfield  says,  in  Cooper  v^Chitty,  1  Burr.  20;  1  Sm.  L.  C. 
417:  "The  bare  defining  of  this  kind  of  action  and  the  grounds  upon 
which  a  plaintiff  is  entitled  to  recover  in  it,  will  go  a  great  way 
towards  the  understanding,  and  consequently  the  solution,  of  the 
question  in  this  particular  case.  In  form  it  is  a  fiction,  in  substance, 
a  remedy  to  recover  the  value  of  personal  chattels  wrongfully  con- 
verted by  another  to  his  own  use.  The  form  supposes  the  defendant 
may  have  come  lawfully  by  the  possession  of  the  goods.  This  action 
lies,  and  has  been  brought  in  many  cases  where  in  truth  the  defend- 
ant has  got  the  possession  lawfully.  When  the  defendant  takes  them 
wrongfully,  and  by  trespass,  the  plaintiff,  if  he  thinks  fit  to  bring 
this  action,  waives  the  trespass,  and  admits  the  possession  to  have 
been  lawfully  gotten." 

It  is  generally  laid  down  that  any  act  which  is  an  interference  with 
the  dominion  and  right  of  property  of  the  plaintiff  is  a  conversion, 
but  this  requires  some  qualification. 

From  the  nature  of  the  action,  as  explained  by  Lord  Mansfield, 
it  follows  that  it  must  be  an  interference  with  the  property  which 
would  not,  as  against  the  true  owner,  be  justified,  or  at  least  excused, 
in  one  who  came  lawfully  into  the  possession  of  the  goods. 

And  in  considering  whether  the  act  is  excused  against  the  true 
owner  it  often  becomes  important  to  know  whether  the  person,  doing 
what  is  charged  as  a  conversion,  had  notice  of  the  plaintiff's  title. 

There  are  some  acts  which  from  their  nature  are  necessarily  a  con- 
version, whether  there  was  notice  of  the  plaintiff's  title  or  not.  There 
are  others  which  if  done  in  a  bond  fide  ignorance  of  the  plaintiff's 
title  are  excused,  though  if  done  in  disregard  of  a  title  of  which  there 
was  notice  they  would  be  a  conversion.  And  this,  I  think,  is  borne 
out  by  the  decided  cases.  Thus  a  demand  and  refusal  is  always  evi- 
dence of  a  conversion.  If  the  refusal  is  in  disregard  of  the  plaintiff's 
title,  and  for  the  purpose  of  claiming  the  goods  either  for  the  defend- 
ant or  a  third  person,  it  is  a  conversion.  If  the  refusal  is  by  a  per- 
son who  does  not  know  the  plaintift''s  title,  and  having  a  bond  fide 
doubt  as  to  the  title  to  the  goods,  detains  them  for  a  reasonable  time, 
for  clearing  up  that  doubt,  it  is  not  a  conversion:  see  Isaack  v. 


SECT.  IV.]  HOLLINS    V.    FOWLER.  411 

Clarke,  1  Buls.  306,  see  p.  312;  Vau^han  v.  Watt,  6  M.  &  W.  492. 
The  principle  being,  as  I  apprehend,  that  the  detention,  which  is  an 
interference  with  the  dominion  of  the  true  owner,  is,  under  such 
circumstances,  excused,  if  not  justified. 

So  the  finder  of  goods  is  justified  in  taking  steps  for  their  protec- 
tion and  safe  custody  till  he  finds  the  true  owiier.  And  therefore  it 
is  no  conversion  if  he  bond  fide  removes  them  to  a  place  of  security. 
And  so  far  the  general  statement  that  an  asportation  is  a  conversion 
must  be  qualified. 

I  cannot  find  it  anj'where  distinctly  laid  down,  but  I  submit  to 
your  Lordships  that,  on  principle,  one  who  deals  with  goods  at  the 
request  of  the  person  who  has  the  actual  custody  of  them,  in  the 
bond  fide  belief  that  the  custodier  is  the  true  owner,  or  has  the  au- 
thority of  the  true  owner,  should  be  excused  for  what  he  does  if  the 
act  is  of  such  a  nature  as  would  be  excused  if  done  by  the  authority 
of  the  person  in  possession,  if  he  was  a  finder  of  the  goods,  or  intrusted 
with  their  custody. 

I  do  not  mean  to  say  that  this  is  the  extreme  limit  of  the  excuse, 
but  it  is  a  principle  that  will  embrace  most  of  the  cases  which  have 
been  suggested  as  difficulties. 

Thus  a  warehouseman  with  whom  goods  have  been  deposited  is 
guilty  of  no  conversion  by  keeping  them,  or  restoring  them  to  the 
person  who  deposited  them  with  him,  though  that  person  turns  out 
to  have  had  no  authority  from  the  true  owner:  see  Heald  v.  Carey, 
11  C.  B.  977;  Alexander  v.  Southeij,  5  B.  &  A.  247. 

And  the  same  principle  would  apply  to  the  cases  alluded  to  by  my 
Brother  Hannen  in  his  judgment  in  the  court  below,  of  persons 
"  acting  in  a  subsidiary  character,  like  that  of  a  person  who  has 
the  goods  of  a  person  employing  him  to  cany  them,  or  a  caretaker, 
such  as  a  wharfinger."  It  will  enable  us  also  to  answer  a  question 
put  during  the  argument  at  your  Lordships'  Bar.  It  was  said :  "  Sup 
pose  that  the  defendant  had  sent  the  delivery  order  to  Micholls. 
who  had  handed  it  to  the  railway  company,  requesting  them  by 
means  of  it  to  procure  the  goods  in  Liverpool  and  carry  them  to 
Stockport,  and  the  railway  company  had  done  so,  would  the  railway 
company  have  been  guilty  of  a  conversion?  " 

I  apprehend  the  company  would  not,  for  merely  to  transfer  the 
custody  of  goods  from  a  warehouse  at  Liverpool  to  one  at  Stockport, 
is  prhnd  facie  an  act  justifiable  in  any  one  who  has  the  lawful  cus- 
tody of  the  goods  as  a  finder,  or  bailee,  and  the  railway  company, 
in  the  case  supposed,  would  be  in  complete  ignorance  that  more  was 
done.  But  if  the  railway  company,  in  the  case  supposed,  could  have 
been  fixed  with  knowledge  that  more  was  done  then  merely  changing 
the  custody,  and  knew  that  the  company's  servants  were  transfcrrinf; 
the  property  from  one  who  had  it  in  fact  to  another  who  was  going 
to  use  it  up,  the  question  would  be  nearly  the  same  as  that  in  the 


412  HOLLINS   V.    FOWLER.  [CHAP.  I. 

present  case.  It  would,  however,  be  very  difficult,  if  not  impossible, 
to  fix  a  railway  company  with  such  knowledge. 

And  on  the  same  principle  I  take  it  the  ruling  of  Lord  Tenterden 
in  Greenway  v.  Fisher,  1  Car.  &  P.  190,  may  be  supported;  for  the 
packer  was  merely  giving  facilities  for  the  transport  of  the  goods 
from  one  place  to  another,  and  was  ignorant  of  the  circumstances 
which  made  it  wrong  against  the  true  owner  to  remove  the  goods, 
though  I  admit  that  his  decision  is  not  put  by  Lord  Tenterden  on 
this  ground,  but  on  that  of  the  packer's  being  a  pubHc  emplo^Tnent, 
which  I  think  my  Brother  Brett,  in  his  judgment  below,  correctly 
shews  to  be  a  mistaken  ground ;  I  think  the  public  nature  of  his  em- 
ployment was  strong  evidence  that  he  was  doing  no  more  than  assist 
in  the  change  of  custody,  which  was,  on  the  principle  suggested, 
excused  in  one  ignorant  of  all  that  made  the  change  of  custody  wrong- 
ful, but  I  do  not  see  how  in  itself  it  made  any  difference.  A  packer 
is  not,  like  a  carrier  or  iimkeeper,  bound  to  receive  all  goods  brought 
to  him. 

I  think,  however,  it  is  but  candid  to  admit  that  the  principle  I 
have  submitted  to  your  Lordships,  though  it  wiU  solve  a  great  many 
difficulties,  will  not  solve  all. 

In  Comyns'  Digest,  Action  on  the  Case  —  Trover,  E.,  it  is  said, 
"If  a  man  deliver  the  oats  of  another  to  B.  to  be  made  oatmeal,  and 
the  owner  afterwards  prohibits  him,  yet  B.  makes  the  oatmeal,  this 
is  a  conversion:"  Per  Berkly,  1638. 

To  this  ever>'  one  would  agree;  but  suppose  the  miller  had  honestly 
ground  the  oats  and  deHvered  the  meal  to  the  person  who  brought 
the  oats  to  him  before  he  even  heard  of  the  true  owner.  How  would 
the  law  be  then?  Or  suppose  the  plaintiffs  in  the  case  at  your  Lord- 
ships' Bar  had,  for  some  reason,  brought  the  action  against  Micholls' 
men  who  assisted  in  turning  this  cotton  into  twist?  The  principle 
I  have  suggested  would  hardly  excuse  such  conversions;  and  yet  I 
feel  that  it  would  be  hard  on  them  to  hold  them  liable.  If  ever  such 
a  question  comes  before  me,  I  will  endeavour  to  answer  it.  I  think 
it  is  not  necessary  now  to  do  so,  for  I  think  that  what  the  defendants 
are  found  to  have  done  in  the  present  case  amounts  to  a  conversion, 
and  is  not  in  any  way  excused. 

I  do  not  rely  on  the  ground,  taken  in  the  earlier  part  of  my  Brother 
Cleasby's  judgment  below,  that  the  defendants  themselves  were 
the  purchasers  from  Baj'ley,  for  though,  if  it  were  left  to  me  to  draw 
inferences  of  fact,  I  should  draw  that  inference,  I  doubt  if  it  is  open 
to  me  so  to  do  after  the  finding  of  the  jury  affirming  that  the  defend- 
ants were  agents.  But  though  it  is  to  be  taken  in  favor  of  the  defend- 
ants that  they  acted  throughout  as  brokers,  and  only  as  brokers,  for 
Micholls,  I  still  think  them  guilty  of  a  conversion. 

The  case  against  them  does  not  rest  on  their  having  merely  en- 
'■  )red  into  a  contract  with  Bay  ley,  or  merely  having  assisted  in  change 


SECT.  IV.]  HOLLINS   V.   FOWLER.  413 

ing  the  custody  of  the  goods,  but  on  their  having  done  both.  They 
knowingly  and  intentionally  assisted  in  transferring  the  dominioi 
and  property  in  the  goods  to  Micholls,  that  Micholls  might  dispost 
of  them  as  their  own,  and  the  plaintiffs  never  got  them  back.  It  k 
true  they  did  it  as  brokers  for  Micholls,  and  not  for  any  benefit  for 
themselves;  but  that  is  not  material:  see  Parker  v.  Godin,  2  Str.  813. 
There,  "the  jury  (considering  the  defendant  acted  only  as  a  friend, 
and  that  it  would  be  hard  to  punish  him)  found  a  verdict  for  the 
defendant.  But  upon  application  to  the  court,  a  new  trial  was  granted, 
upon  the  fact  of  its  being  an  actual  conversion  in  the  defendant, 
notwithstanding  he  did  not  apply  the  money  to  his  own  use." 

No  doubt  in  that  case  the  friend,  it  may  be  inferred,  knew  of  the 
bankruptcy,  and  was  therefore  not  an  innocent  party.  But  that 
remark  will  not  apply  to  Stephens  v.  Elwall,  4  M.  &  S.  259,  where 
Lord  Ellenborough  says:  "The  clerk  acted  under  an  unavoidable 
ignorance  and  for  his  master's  benefit  when  he  sent  the  goods  to  his 
master,  but  nevertheless  his  acts  may  amount  to  a  conversion;  for 
a  person  is  guilty  of  a  conversion  who  intermeddles  with  my  prop- 
erty and  disposes  of  it,  and  it  is  no  answer  that  he  acted  under  au- 
thority from  another,  who  had  himself  no  authority  to  dispose  of  it." 
No  case  harder  than  that  of  the  defendant  in  Stephens  v.  Elwall  can 
well  be  imagined,  unless,  perhaps,  that  of  a  sheriff  who  seized  the 
goods  which,  in  consequence  of  a  secret  act  of  bankruptcy,  had  be- 
come the  goods  of  the  assignees.  He  was  liable  to  them  in  trover: 
see  Garland  v.  Carlisle,  4  CI.  &  F.  693.  The  Legislature  altered  the 
law  to  avoid  that  hardship,  making  the  loss  in  future  fall  on  the  as- 
signees; and  the  Legislature  may,  to  avoid  the  hardship  on  persons 
situated  like  the  defendants,  extend  the  protection  now  given  to  pur- 
chasers in  market  overt,  and  to  persons  dealing  with  agents  intrusted 
under  the  Factors  Acts,  to  brokers  dealing  with  any  one  in  the  ordi- 
nary markets.  Those  who  agree  with  the  opinion  expressed  bj"  the 
Lord  Chief  Baron,  Law  Rep.  7  Q.  B.  641,  that  it  is  unreasonable 
and  unjust  that  they  should  be  bound,  at  their  peril,  to  inquire  into 
the  title  of  the  sellers  with  whom  they  deal,  would  support  an  altera- 
tion of  the  law  to  that  effect.  Many,  having  regard  to  the  interest 
of  the  true  owners  of  goods,  would  object  to  it.  But  I  think  that  the 
law  as  it  exists  does  not  protect  such  brokers. 

The  conversion  in  the  case  of  Stephens  v.  Elwall,  4  M.  &  S.  259, 
consisted  in  assisting  in  transferring  the  goods  from  Deane  to  the 
defendant's  master  in  America,  with  intent  to  transfer  Dcanc's  de 
facto  property  to  the  defendant's  master.  Deane's  title  was  bad 
against  the  plaintiffs,  who  were  assignees  of  Spencer,  because  he  had 
bought  them  from  Spencer  after  an  act  of  bankruptcy,  though  of 
that  the  defendant  was  ignorant,  unavoidably  ignorant,  says  Lord 
Ellenborough, 

The  conversion  in  the  present  case  consists  in,  by  means  of  the 


414  HOLLINS    V.    FOWLER.  [CKAP.  I. 

delivery  order,  transferring  the  goods  from  Bayley  to  Micholls  with 
intent  to  transfer  de  facto  Bayley 's  property  to  Micholls.  Bayley 's 
title  was  bad  against  the  now  plaintiffs,  though  of  that  the  defendants 
were  ignorant.  I  can  see  no  possible  distinction  between  the  two 
cases.  No  doubt  Stephens  v.  Elwall  may  be  overruled  in  this  House, 
but  I  do  not  think  it  wrong,  and  no  decision  cited,  or  of  which  I  am 
aware,  seems  to  me  in  conflict  with  it.  Ross  v.  Johnson,  5  Burr. 
2825,  cited  by  my  Brother  Brett,  is  not  in  point.  There  the  defend- 
ant had  received  goods  as  plaintiff's  warehouseman.  They  were  lost, 
and  the  ruling  of  the  court  was,  that  though  an  action  might  he  for 
negligence,  if  there  was  any,  there  was  no  conversion. 

The  Lancashire  Wagon  Company  v.  Fitzhugh,  6  H.  &  N.  502,  was 
an  action  for  the  injury  to  the  reversionary  interest  of  the  plain- 
tiffs in  certain  goods  let  to  one  Pell  for  a  term.  The  sheriff  had  seized 
and  sold  those  goods  under  an  execution  against  Pell.  He  had  a 
right  to  sell  Pell's  limited  interest,  but  none  to  sell  the  plaintiffs' 
interest,  and  the  question  raised,  or  at  least  intended  to  be  raised, 
on  the  record  was,  whether  the  sheriff  had  done  anything  injurious 
to  plaintiffs'  interest.  I  have  failed  to  see  how  the  decision  bears 
upon  the  point  now  in  dispute,  except  in  so  far  as  the  decision,  that 
though  a  sale  is  no  conversion,  a  sale  and  delivery  to  one  who  uses 
the  goods  is,  makes  against  the  defendants. 

I  need  hardly  say,  that  where  there  has  been  so  great  a  difference 
of  judicial  opinion,  I  express  my  opinion  with  diffidence;  but  the 
reasons  I  have  given  lead  me  to  form  the  opinion  I  have  expressed, 
and  I  therefore  answer  j'our  Lordships'  question  in  the  affirma^ 
tive. 

Mr.  Justice  Brett.  ...  I  submit,  therefore,  that  the  very 
foundation  of  this  case  is  that  the  defendants  made  the  contract  as 
agents  and  brokers  only,  and  that  they  did  not  buy  or  sell  as  prin- 
cipals, and  that  in  obtaining  the  sampling  order  and  sample,  and  in 
obtaining  or  signing  the  delivery  order,  and  in  recei\'ing  and  for- 
warding the  cotton,  they  acted,  so  far  as  knowledge  or  recollection 
and  intention  went,  merely  as  agents  for  Micholls,  Lucas,  &  Co., 
to  examine  for  them,  to  receive  for  them,  to  forward  to  them,  goods 
assumed  at  the  time  to  be  their  goods  without  any  reference  to 
the  contract  by  which  the  goods  became  theirs.  The  question  of 
law  is,  whether  such  dealing  with  goods  can  lay  a  mere  agent  open 
to  an  action  of  trover.  The  question  in  business,  and  it  is  a  most 
Important  one  for  Liverpool,  is,  whether  the  cotton  brokers  of  Liver- 
pool may  with  safety,  so  long  as  they  do  no  more,  add  to  their  proper 
function  of  brokers  the  business  of  forwarding  cotton  to  the  Liver- 
pool stations  for  their  clients.  If  they  may,  it  seems  to  be  an  addi- 
tion to  their  business  of  mere  brokers  innocent  as  regards  others,  and 
convenient  for  them  and  their  clients.  If  the  brokers  may  not  safely 
perform  this  small  function  of  forwarding  to  the  station,  another 


SECT.  IV.]  HOLLINS    V.    FOWLER.  415 

agent  must  be  introduced  by  the  country  principal  to  do  it,  to  the 
great  inconvenience  of  such  principal. 

The  real  question,  which  I  cannot  doubt  it  was  the  intention  of 
Justice  WiLLES  to  have  discussed,  is,  whether  every  actual  dealing 
with  a  chattel  in  a  manner  inconsistent  with  the  right  of  a  true  owner 
gives  to  the  true  owner  a  right  of  action  in  trover  against  every  per- 
son so  deahng,  except  a  common  carrier,  or  whether  the  dealing  with 
the  chattel,  in  order  to  support  against  him  who  has  dealt  with  it  an 
action  of  trover,  must  not  be  with  intention  to  interfere  with  the 
property  in  the  chattel.  I  believe  that  he  desired  to  have  set  at  rest 
the  divergence  of  opinion  on  this  point  between  Baron  Maetin  and 
the  other  barons  in  the  case  of  Burroughes  v.  Bayne,  5  H.  &  N.  296. 
In  that  case  Baron  Martin  says,  5  H.  &  N.  302,  303:  "But  the 
word  'conversion,'  by  a  long  course  of  practice,  has  acquired  a  tech- 
nical meaning.  It  means  detaining  goods  so  as  to  deprive  the  person 
entitled  to  the  possession  of  them  of  his  dominion  over  them."  Far- 
ther on  he  explains  what  he  intends  by  this.  He  quotes  from  the 
judgment  of  Alderson,  B.,  in  Fouldes  v.  Willoughby,  8  j\I.  &  W. 
540,  thus:  "Any  asportation  of  a  chattel  for  the  use  of  the  defendant 
or  a  third  person  amounts  to  a  conversion,  for  this  simple  reason, 
that  it  is  an  act  inconsistent  with  the  general  right  of  dominion  which 
the  owner  of  the  chattel  has  in  it,  who  is  entitled  to  the  use  of  it  at 
all  times  and  in  all  places.  When,  therefore,  a  man  takes  that  chat- 
tel, either  for  the  use  of  himself  or  another,  it  is  a  conversion."  "I," 
says  Martin,  B.,  "entirely  accede  to  this  view  of  the  law,  which  is 
simple  and  of  easy  application."  It  is  obvious  that  Martin,  B.,  took 
a  very  large  view  of  the  term  "conversion."  And  that  the  question 
of  the  right  interpretation  of  the  term  is  very  important,  for  upon  it 
m.ay  depend  whether  a  defendant  is  to  be  held  liable  in  trover  for 
the  full  value  of  the  chattel  in  dispute  or  in  trespass  for  perhaps  only 
nominal  damages.  In  the  same  case  of  Burroughes  v.  Bayne,  5  H. 
&  N.  at  p.  305,  Channell,  B.,  says:  "I  desire  it  to  be  understood 
that  I  do  not  mean  to  state,  or  suggest,  that  every  detention  is  a 
conversion,  I  guard  myself  against  any  such  supposition.  Ever}^ 
asportation  is  not  a  conversion,  and  therefore  it  seems  to  me  that 
every  detention  cannot  be  a  conversion.  If  it  were,  the  mere  removal 
of  a  chattel,  independently  of  any  claim  over  it  in  favour  of  the  party 
himself,  or  any  one  else  whatever,  would  be  a  conversion.  The  as- 
portation of  a  chattel  for  the  use  of  the  defendant  or  third  person 
amounts  to  a  conversion,  and  for  this  reason,  whatever  act  is  done 
inconsistent  with  the  dominion  of  the  owner  of  a  chattel  at  all  times 
and  places  over  that  chattel  is  a  conversion.  On  the  other  hand  the 
simple  asportation  of  a  chattel,  without  any  intention  of  having 
farther  use  of  it,  though  it  may  be  a  sufficient  foundation  for  an 
action  of  trespass,  is  not  sufficient  to  establish  a  conversion." 
Eramwell,  B.,  says,  5  H.  &  N.  at  pp.  308,309:  "It  certainly  is  not 


il6  HOLLINS    V.    FOWLER.  [cHAP.  I. 

3very  detention  of  goods,  although  there  is  no  right  to  detain  them, 
that  is  a  conversion,  in  my  judgment  at  all  events."  Again:  "The 
result  is,  you  must  in  all  cases  look  to  see  not  whether  there  has  been 
what  may  be  called  a  withholding  of  the  property',  but  a  withholding 
of  it  in  such  a  way  as  that  it  may  be  said  to  be  a  conversion  to  a  man's 
own  use."  Again:  "If  I  am  to  be  considered  as  having  wrongfully 
detained  them,  though  you  went  away,  and  sent  for  them  the  next 
morning,  your  damages  are  a  farthing.  Instead  of  which,  by  the  use 
of  the  word  'conversion,'  the  defendant  is  made  liable  for  the  value 
of  the  billiard  table,  which  he  caimot  recover  from  any  one  else. 
Therefore,  on  consideration  of  all  the  facts,  had  I  been  one  of  the 
juiy,  I  should  have  found  that  there  was  not  an  assertion  of  dominion 
inconsistent  with  the  title  of  the  plaintiff,  etc."  In  the  judgment  in 
the  Exchequer  Chamber,  Martin,  B.,  repeated  the  same  view  of  a 
conversion  which  he  had  stated  in  Burroughes  v.  Bayne,  5  H.  &  N. 
296:  "But  as  regards  the  action  of  trover,"  he  says,  "I  think  it  is 
well  settled  that  the  assumption  and  exercise  of  dominion  —  and 
asportation  is  an  exercise  of  dominion  —  over  a  chattel,  inconsistent 
with  the  title  and  general  dominion  which  the  true  owner  has  in  and 
over  it,  is  a  conversion,  and  that  it  is  immaterial  whether  the  act 
done  be  for  the  use  of  the  defendant  himself  or  of  a  third  person." 
Now  the  greater  part  of  the  propositions  thus  enunciated  by  Mar- 
tin, B.,  are  identical  with  the  propositions  of  the  other  judges.  All, 
I  think,  agree  that  the  assumption  and  exercise  of  dominion  over  a 
chattel,  inconsistent  with  the  title  of  the  true  owner,  is  a  conversion. 
All  would  agree  that  the  detaining  goods  so  as  to  deprive  the  person 
entitled  to  the  possession  of  them  of  his  dominion  over  them  is  a 
conversion,  if  by  the  word  "dominion"  in  the  last  proposition  is 
intended  "  title  as  o^^^ler."  The  essential  difference  between  the  \'iew 
of  Baron  Martin  and  the  other  judges  I  have  mentioned  is  in  the 
sense  in  which  this  word  "dominion"  is  used  by  him  and  them. 
When  Baron  Martin  speaks  of  interfering  with  the  dominion  of 
the  true  owner,  he  means  interfering  with  the  mere  possession  or 
right  of  possession  of  the  owner.  The  other  judges  mean  an  inter- 
ference or  dealing  with,  or  doing  some  act  in  negation  Of,  the  title 
as  owner  of  the  true  o\\'ner.  Baron  Martin  holds  that  every  aspor- 
tation or  detention  which  cannot  be  justified,  i.e.,  which  is  not  done 
for  the  true  owner,  is  a  conversion.  Baron  Channell  and  Baron 
Bramwell  hold  that  a  mere  simple  asportation  or  detention  is  not 
of  itself  a  conversion,  but  only  when  either  is  done  in  a  maimer  or 
with  an  intention  inconsistent  with  the  proprietary  title,  as  owner, 
of  the  true  o^Tier.  If  the  findings  of  the  jury  in  the  present  case  are 
to  be  treated  as  I  have  suggested  they  should  be  treated,  then  the 
question  in  this  case  is,  what  is  the  proper  definition  of  the  term 
"conversion"  in  a  case  in  which  an  asportation  of  the  chattel  is  re- 
lied on  as  the  conversion.   If  the  first  finding  is  to  be  treated  as  a 


SECT.  IV. 


HOLLINS   V.    FOWLER.  417 


binding  decision  that  the  defendants  in  making  the  contract  acted 
only  as  brokers,  so  that  they  did  not  themselves  buy  the  cotton  as 
buyers,  and  so  that  they  did  not  sell  it  as  sellers,  then  what  they  thus 
did  is  clearly,  I  think,  no  conversion.  The  reasons  for  this  I  gave  in 
my  judgment  below.  If  the  second  finding  is  treated  as  a  decision 
that  the  asportation  was  a  mere  simple  asportation,  made  without 
intention  of  or  relation  to  interference  with  any  one's  title,  then  such 
asportation  is  no  convei-sion  unless  the  definition  of  Martin,  B., 
is  preferred  to  that  of  Barons  Bramwell  and  Channell.  It  cannot 
fail  to  be  observed  that  the  definition  of  Martin,  B.,  includes  the 
cases  of  a  carrier,  wharfinger,  warehouseman,  and  packer,  even 
when  there  is  no  demand  and  refusal ;  and  that  in  order  to  meet  the 
difficulty,  he,  in  his  judgment  in  the  Exchequer  Chamber,  declares 
that  the  case  of  a  carrier  is  to  be  excepted,  because  he  is  bound  by  law 
to  receive  and  carry  the  goods  of  every  one  who  brings  goods  to  him ; 
and  that  the  case  of  a  packer  is  not  properly  an  exception,  and  that 
the  case  of  Greenway  v.  Fisher,  1  C.  &  P.  190,  is  wrongly  decided. 
I  endeavoured  in  the  Exchequer  Chamber  to  explain  all  the  cases 
which  are  called  exceptional,  by  shewing  that  the  definition  of  a  con- 
version laid  dowTi  by  Bramwell  and  Channell,  BB.,  is  the  correct 
definition,  and  that  if  so,  the  cases  referred  to  are  properly  decided, 
not  because  they  are  exceptions  to,  but  because  they  are  outside  the 
rule.  I  cannot  assist  much  farther  upon  this  point  than  I  endeavoTared 
to  do  in  that  judgment,  to  which  I  beg  to  refer.  In  addition,  however, 
I  may  say  that  in  Simmons  v.  Lilly  stone,  8  Ex.  437,  Parke,  B.,  saj's: 
"Here  the  defendant  never  intended  to  take  to  himself  any  property 
in  the  timber,"  and,  "We  are  all  of  opinion  that  there  was  no  suffi- 
cient evidence  of  a  conversion.  In  order  to  constitute  a  conversion 
there  must  be  an  intention  of  the  defendant  to  take  to  himself  the^ 
property  in  the  goods,  or  to  deprive  the  plaintiff  of  it."  If  the  last 
phrase  be  expanded,  it  clearly  means  "  or  to  deprive  the  plaintiff  of  the 
property  in  the  goods."  In  Chitty  on  Pleading,  vol.  1,  tit.  Trover, 
p.  172,  ed.  1844,  it  is  said:  "There  may  be  a  conversion,  1st,  by  wrong- 
fully taking  a  personal  chattel;  2ndly,  by  some  other  illegal  assump- 
tion of  ownership,  or  by  illegally  using  or  misusing  goods;  or  3rdly, 
by  a  wrongful  detention."  Looking  to  the  phraseology  of  the  second 
branch,  which  speaks  of  "some  other  assumption  of  ownership," 
it  is  obvious  that  the  taking  in  the  first  branch  is  a  taking  as  in  right 
of  ownership  in  the  defendant,  or  in  some  one  other  than  the  plain- 
tiff. In  explaining  the  second  branch,  the  learned  author  says:  "So 
the  wrongful  assumption  of  the  property  in  goods  may  be  a  conver- 
sion of  itself,  or  the  wrongful  assumption  of  a  right  of  disposing  of 
them."  And  under  the  latter,  he  gives  as  instances  a  wrongful  user 
of  the  goods,  i.e.,  I  apprehend,  a  user  as  if  the  defendant  or  some  one 
other  than  the  plaintiff  were  the  owTier,  and  a  misuser  by  the  defend- 
ant, as  by  breaking  bulk,  or  consuming,  or  transforming,  which  arc 


418  HOLLINS    V.    FOWLER.  [CHAP.  I. 

all  cases  of  the  exercise  of  acts  as  of  ownership.  It  seems  apparent 
to  me  that  a  claim  or  exercise  of  ownership  is  throughout  in  the  mind 
of  the  author  as  the  reason  of  his  prodiicing  the  cases  as  examples 
of  "actual  conversion."  And  then  he  proceeds  to  the  third  head, 
and  says:  "A  demand  and  refusal  are  necessary  in  all  cases  where 
the  defendant  became  in  the  first  instance  lawfully  possessed  of  the 
goods,  and  the  plaintiff. is  not  prepared  to  prove  some  distinct  'actual 
conversion.'  "  That  is  to  say,  as  it  seem.s  to  me,  that  in  order  to 
prove  a  conversion,  you  must  give  evidence  either  of  "an  actual 
conversion,"  which  consists  in  the  defendant  taking  or  using  the 
goods  with  the  intent  to  exercise  an  act  of  ownership  on  his  own  be- 
half, or  of  some  one  other  than  the  plaintiff,  or  of  a  conversion  by 
reason  of  a  refusal  on  demand.  I  conclude,  therefore,  as  before,  that 
the  defendant  cannot  be  properly  made  liable  in  trover  on  the  first 
part  of  the  leave  reserved  in  this  case,  because  he  was  acting  only  as 
a  broker,  to  make  a  contract  between  other  parties,  and  none  with 
himself;  nor  on  the  second  part  of  the  leave  reserved,  because  the 
court  was  bound  to  treat  the  asportation,  which  was  relied  on  as  an 
actual  conversion,  as  a  simple  asportation  made  without  intent  to 
interfere  in  any  manner  with  the  title  of  or  ownership  in  the  cotton. 
I  cannot  agree  with  the  \'iew  which  seems  to  me  to  be  expressed  by 
Martin,  B.,  in  Burroughes  v.  Bayne,  5  H.  &  N.  296,  that  the  action 
of  trover  is  equivalent  to  an  action  of  trespass,  and  was  invented  in 
order  to  replace  the  action  of  detinue,  avoiding  only  the  right  of  the 
defendant  to  wage  his  law.  I  believe  that  it  was  invented  in  order  to 
provide  a  remedy  in  damages,  where  there  has  been  a  trespass,  and 
more  than  trespass  to  goods,  namely,  acts  done  with  the  intention 
of  transferring  or  interfering  with  the  title  to  or  owTiership  of  them, 
cr  which  are  done  as  acts  of  ownership  of  them,  or  where  without  an 
original  trespass  there  have  been  acts  done  with  the  intention  of 
transferring  or  interfering  with  the  title  to  or  ownership  of  them,  or 
which  have  been  done  as  acts  of  ownership  of  them.  I  am  still  of 
opinion  that  a  possession  or  detention  which  is  a  mere  custody  or 
mere  asportation  made  without  reference  to  the  question  of  the  prop- 
erty in  chattels  is  not  a  conversion.  I  answer  your  Lordships'  ques- 
tion by  saying  that  in  my  opinion  the  judgments  in  the  Court  of 
Queen's  Bench  and  Exchequer  Chamber  ought  to  be  reversed,  and 
that  judgment  in  the  action  ought  to  be  entered  for  the  defendants. 

Note.  —  A  majority  of  the  judges  concurred  in  the  conclusion 
reached  by  Mr.  Justice  Blackburn. 

Rice  V.  Yocum,  155  Pa.  538.  An  agent  who  buys  for  his  principal 
the  chattels  of  the  plaintiff  from  one  who  had  no  authority  to  sell 
them,  and  delivers  them  to  his  principal,  converts  the  chattels. 


SECT.  IV.]  HIORT    V.    BOTT.  419 

HIORT  V.  BOTT. 

L.  R.  9  Exch.  86.     1874. 

Action  of  trover  for  barley,  tried  before  Akchibald,  J.,  at  the 
Staffordshire  Summer  Assizes,  1873. 

The  facts  were  as  follows :  The  plaintiffs,  w^ho  were  corn  merchant?, 
trading  under  the  name  of  Brochner  and  Co.,  at  Hull,  had  been  in 
the  habit  of  employing  one  Grimmett  as  their  broker.  In  conse- 
quence of  a  telegram  from  Grimmett,  they,  on  the  8th  of  June,  1872, 
forwarded  to  the  London  and  North  Western  Railway  station  at 
Birmingham  83  quarters  of  barley,  and  at  the  same  time  sent  to  the 
defendant,  who  was  a  licensed  victualler  carrjdng  on  business  at 
Deritend,  Birmingham,  a  letter,  inclosing  an  invoice  for  the  barley, 
in  which  it  was  stated  to  be  ''sold  by  Mr.  Grimmett  as  broker  be- 
tween buyer  and  seller,"  and  a  dehvery  order,  which  made  the  barley 
deliverable  '"to  the  order  of  consignor  or  consignee."  The  barley  had 
in  fact  never  been  ordered  by  the  defendant,  who  had  had  no  previ- 
ous dealings  with  either  the  plaintiffs  or  Grimmett.  A  day  or  two 
after  the  receipt  of  these  documents  by  the  defendant,  Grimmett 
called;  the  defendant  produced  the  documents,  and  said,  "What  does 
this  mean?  I  never  bought  any  barley  through  you  of  Brochner  and 
Co."  Grimmett  said  "it  was  a  mistake  of  Brochner  and  Co.;  they 
had  no  doubt  confused  the  defendant's  name  and  some  other  name; 
they  were  doing  a  large  business,  and  might  have  made  a  mistake." 
Grimmett  then  asked  the  defendant  to  indorse  the  order,  telling  him 
that  he  could  not  get  the  barley  without,  and  that  by  not  sending  the 
order  back  expense  would  be  saved.  Thereupon  the  defendant  in- 
dorsed the  delivery  order  to  Grinmaett,  who  took  it  to  the  railway 
station,  obtained  deUvery  of  the  barley,  disposed  of  it,  and  absconded. 

In  answer  to  a  question  by  the  learned  judge,  the  jury  found  that 
the  defendant,  in  signing  the  order,  had  no  intention  of  appropriating 
the  barley  to  his  own  use,  but  was  anxious  to  correct  what  he  believed 
to  be  an  error;  and,  on  the  learned  judge  adding,  "and  with  a  view  of 
returning  the  barley  to  the  plaintiffs,"  they  assented. 

The  learned  judge  then  directed  the  verdict  to  be  entered  for  the 
defendant,  with  leave  to  the  plaintiffs  to  move  to  enter  the  verdict 
for  them  for  180/.,  the  value  of  the  barley.  A  rule  having  been 
obtained  accordingly. 

Bramw^ell,  B.  This  case  was  argued  before  my  Brothers  Pigott 
and  Cleasby  and  myself,  and  we  are  all  of  opinion  that  the  rule 
must  be  made  absolute.  [After  stating  the  facts  the  learned  judge 
proceeded :  — ] 

I  think  the  plaintiffs  are  entitled  to  recover;  though,  so  far  as  con- 
cerns the  defendant,  whose  act  was  well  meant,  I  regret  the  result. 
Mr.  Bosanquet  gave  a  good  description  of  what  constitutes  a  conver- 


420  HIORT    V.    BOTT.  [CHAP.  I. 

sion  when  he  said  that  it  is  where  a  man  does  an  unauthorized  ad 
which  deprives  another  of  his  property  permanently  or  for  an  indefi- 
nite time.  The  expression  used  in  the  declaration  is  "converted  to 
his  owTi  use";  but  that  does  not  mean  that  the  defendant  consumed 
the  goods  himself;  for,  if  a  man  gave  a  quantity  of  another  person's 
wine  to  a  friend  to  drink,  and  the  friend  drank  it,  that  would  no 
doubt  be  as  much  a  conversion  of  the  wine  as  if  he  drank  it  himself. 
Now  here  the  defendant  did  an  act  that  was  unauthorized.  There 
was  no  occasion  for  him  to  do  it;  for  the  delivery  order  made  the 
barley  deliverable  to  the  order  of  the  consignor  or  consignee,  and  if 
the  defendant  had  done  nothing  at  all  it  would  have  been  delivered 
to  the  plaintiffs.  And  there  is  no  doubt  that  by  what  he  did  he 
deprived  the  plaintiffs  of  their  property;  because,  by  means  of  this 
order  so  indorsed,  Grimmett  got  the  barley  and  made  away  vdth  it, 
leaving  the  plaintiffs  without  any  remedy  against  the  railway  com- 
pany, who  had  acted  according  to  the  instructions  of  the  plaintiffs 
in  delivering  the  barley  to  the  order  of  the  consignee.  The  case, 
therefore,  stands  thus :  that  by  an  unauthorized  act  on  the  part  of  the 
defendant,  the  plaintiffs  have  lost  their  barley,  without  any  remedy 
except  against  Grimmett,  and  that  is  worthless.  It  seems  to  me 
therefore,  that  this  was  assuming  a  control  over  the  disposition  of 
these  goods,  and  a  causing  them  to  be  delivered  to  a  person  who 
deprived  the  plaintiffs  of  them.  The  conversion  is  therefore  made 
out. 

Various  ingenious  cases  were  put  as  to  what  would  happen  if,  for 
instance,  a  parcel  were  left  at  your  house  by  mistake,  and  you  gave 
it  to  your  servant  to  take  back  to  the  person  who  left  it  there,  and 
the  servant  misappropriated  it.  Probably  the  safest  way  of  dealing 
with  that  case  is  to  wait  until  it  arises;  but  I  may  observe  that  there 
is  this  difference  between  such  a  case  and  the  present  one,  that  where 
a  man  delivers  a  parcel  to  you  by  mistake,  it  is  contemplated  that  if 
there  is  a  mistake,  you  will  do  something  with  it.  What  are  you  to  do 
with  it?  Warehouse  it?  No.  Are  you  to  turn  it  into  the  street?  That 
would  be  an  unreasonable  thing  to  do.  Does  he  not  impliedly  author- 
ize you  to  take  reasonable  steps  with  regard  to  it  —  that  is,  to  send 
it  back  by  a  trustworthy  person?  And  when  you  say,  "  Go  and  de- 
liver it  to  the  person  who  sent  it,"  are  you  in  any  manner  con- 
verting it  to  your  own  use?  That  may  be  a  question.  But  here  the 
defendant  did  not  send  the  order  back;  but  at  Grimmett's  request 
indorsed  it  to  him,  though,  no  doubt,  as  the  jury  have  found,  with  a 
view  to  the  barley  being  returned  to  the  plaintiffs.  There  is  therefore 
a  distinction  between  the  case  put  and  the  present  one.  And  there  is 
also  a  distinction  between  the  case  of  Heugh  v.  London  and  North 
Western  Ry.  Co.,  Law  Rep.  5  Ex.  51,  which  was  cited  for  the  defend- 
ant, and  the  present  case;  because  there  it  was  taken  that  the  i^lain- 
tiff  authorized  the  defendants  to  deliver  the  goods  to  a  person  apply- 


SECT.  IV.]  STEPHENS    V.    ELWALL.  421 

ing  for  them,  if  they  had  reasonable  grounds  for  believing  him  to  be 
the  right  person. 

On  these  considerations  I  think  the  plaintiffs  are  entitled  to  recover. 
But  I  must  add  one  word.  This  is  an  action  for  conversion,  and  I 
lament  that  such  a  word  should  appear  in  our  proceedings,  which 
does  not  represent  the  real  facts,  and  which  always  gives  rise  to  a 
discussion  as  to  what  is,  and  what  is  not,  a  conversion.  But  sup- 
posing the  case  were  stated  according  to  a  non-artificial  system  of 
pleading,  thus:  "We,  the  plaintiffs,  had  at  the  London  and  North 
Western  Railway  station  certain  barley.  We  had  sent  the  delivery 
order  to  you,  the  defendant.  You  might  have  got  it,  if  you  were 
minded  to  be  the  buyer  of  it ;  you  were  not  so  minded,  and  therefore 
should  have  done  nothing  with  it.  Nevertheless,  j^ou  ordered  the 
London  and  North  Western  Railway  Company  to  deliver  it,  without 
any  authority,  to  Grimmett,  who  took  it  away."  Would  not  that 
have  been  a  logical  and  precise  statement  of  a  tortious  act  on  the 
part  of  the  defendant,  causing  loss  to  the  plaintiffs?  It  seems  to  me 
that  it  would.  I  think,  but  not  without  some  regret,  that  this  rule 
should  be  made  absolute,  to  enter  the  verdict  for  the  plaintiffs. 

Note. — See,  accord,  Knapp  v.  Guyer,  75  N.H.  397. 


STEPHENS  V.   ELWALL. 

4  M.  &  S.  259.     1S15. 

Trover  for  goods.  Plea,  not  guilty.  At  the  trial  before  Le  Blanc, 
J.,  at  the  last  Lancaster  assizes  the  case  was  this: 

The  bankrupts  being  possessed  of  the  goods  in  question  sold  them 
after  their  bankruptcy  to  one  Deane,  to  be  paid  for  by  bills  on 
Heathcote,  who  had  a  house  of  trade  in  London,  and  for  whom  Deane 
bought  the  goods.  Heathcote  was  in  America;  and  the  defendant  was 
his  clerk,  and  conducted  the  business  of  the  house.  Deane  communi- 
cated to  the  defendant  infonnation  of  the  purchase  on  the  day  it  was 
made,  and  the  goods  were  afterwards  delivered  to  the  defendant,  and 
he  disposed  of  them  by  sending  them  to  America  to  Heathcote.  No 
demand  was  made  upon  the  defendant  until  nearly  two  years  after 
the  purchase.  The  learned  judge  inclined  to  think,  and  so  stated  to 
the  jurj^,  that  if  the  defendant  was  acting  merely  as  the  clerk  of 
Heathcote  he  was  not  hable;  but  if  he  was  transacting  business  for 
himself,  though  in  the  name  of  another,  then  he  would  be  liable. 
The  juiy  found  a  verdict  for  the  defendant.  And  upon  a  rule  nisi 
obtained  in  the  last  term  for  a  new  trial,  in  order  to  question  the 
accuracy  of  the  learned  judge's  direction  in  point  of  law,  Pcrhins  v. 
Smith,  1  Wils.  328,  was  cited,  and  it  was  contended  that  the  defeixl- 


422  GURLEY    V.    AEMSTEAD.  [cHAP.  I. 

ant  being  a  tort-feazer,  no  authority  that  he  could  derive  from  his 
master  would  excuse  him  from  being  liable  in  this  action. 

Lord  Ellenborough,  C.J.  The  only  question  is,  whether  this  is 
a  conversion  in  the  clerk,  which  undoubtedly  was  so  in  the  master. 
The  clerk  acted  under  an  unavoidable  ignorance  and  for  his  master's 
benefit  when  he  sent  the  goods  to  his  master;  but  nevertheless  his 
acts  may  amount  to  a  conversion;  for  a  person  is  guilty  of  a  conver- 
sion who  intermeddles  with  my  property  and  disposes  of  it,  and  it  is 
no  answer  that  he  acted  under  authority  from  another,  who  had 
himself  no  authority  to  dispose  of  it.  And  the  court  is  governed  by 
the  principle  of  law,  and  not  by  the  hardship  of  any  particular  case. 
For  what  can  be  more  hard  than  the  common  case  in  trespass,  where 
a  servant  has  done  some  act  in  assertion  of  his  master's  right,  that  he 
shall  be  liable,  not  only  jointly  with  his  master,  but  if  his  master 
cannot  satisfy  it,  for  every  penny  of  the  whole  damage ;  and  his  person 
also  shall  be  liable  for  it;  and  what  is  still  more,  that  he  shall  not 
recover  contribution? 

Note.  —  In  Leuthold  v.  Fair  child,  35  Minn.  99,  the  court  said 
(p.  Ill):  ''We  hold  the  ruleof  lawto  be  that  an  agent  or  servant  who, 
acting  solely  for  his  principal  or  master,  and  by  his  direction,  and 
without  knowing  of  any  wrong,  or  being  guilty  of  gross  negligence 
in  not  knowing  of  it,  disposes  of,  or  assists  the  master  in  disposing 
of,  property  which  the  latter  has  no  right  to  dispose  of,  is  not  thereby 
rendered  liable  for  the  conversion  of  the  property." 


GURLEY  V.  ARIMSTEAD. 

148  Mass.  267.     1889. 

Tort  for  the  conversion  of  certain  articles  of  personal  property 
belonging  to  the  plaintiff.  The  case  was  submitted  to  the  Superior 
Court,  and,  after  judgment  for  the  defendant,  to  this  court,  on  appeal, 
on  an  agreed  statement  of  facts,  which,  so  far  as  material,  appears  in 
the  opinion. 

Devens,  J.  The  defendant,  who  was  a  job  teamster,  removed 
the  goods  alleged  to  have  been  by  him  converted  from  a  room  in  the 
dwelling-house  of  one  Whittier  to  the  store  of  one  Da\'is,  and  there 
delivered  them  to  Whittier,  by  whose  direction  he  had  acted.  Al- 
though the  goods  were  in  the  house  of  Whittier,  they  were  in  a  room 
hired  by  the  plaintiff  from  him.  The  contract  between  them  was  one 
for  rent,  and  not  for  storage,  Whittier  reserving  no  control  over  the 
room.  It  was,  however,  neither  locked  nor  fastened,  although  no 
goods  were  in  it  except  those  of  the  plaintiff.  In  all  that  he  did  the 
defendant  acted  in  good  faith,  without  any  intention  of  depriving 


SECT.  IV.]  GURLEY    V.    ARMSTEAD.  423 

the  rightful  owner  of  her  property,  and  in  ignorance  of  the  fact  that 
the  plaintiff  was  such  owner,  neither  asserting  title  in  himself  nor 
denying  title  to  any  other,  nor  exercising  any  act  of  ownership  except 
by  the  removal  above  stated. 

The  legal  possession  of  the  goods  was,  under  these  circumstances, 
undoubtedly  in  the  plaintiff,  and  as  they  were  in  the  room  hired  by 
her,  the  actual  possession  was.  also  hers.  The  apparent  control  of 
them  was,  however,  in  Whittier,  as  they  were  in  his  house,  and  he 
had  further  the  present  capacity  to  take  actual  physical  posses- 
sion, as  the  room  in  which  they  were  was  neither  locked  nor  fas- 
tened. 

It  is  conceded  that  whoever  receives  goods  from  one  in  actual, 
although  illegal,  possession  thereof,  and  restores  the  goods  to  such 
person,  is  not  liable  for  a  conversion  by  reason  of  having  transported 
them.  Strickland  v.  Barrett,  20  Pick.  415;  Leonard  v.  Tidd,  3  Met.  6. 
And  this  would  be  so  apparently,  even  if  the  goods  thus  received 
were  restored  to  the  wrongful  possessor,  after  notice  of  the  claim  of 
the  true  owner.  Loring  v.  Mulcahy,  3  Allen,  575;  Metcalf  v.  McLaugh- 
lin, 122  Mass.  84. 

Upon  the  precise  question  raised,  we  have  found  no  direct  author- 
ity, nor  was  any  cited  in  the  argument ;  but  the  principle  on  which 
the  decisions  above  cited  rest  is  not  unreasonably  extended  when  it 
is  applied  to  the  circumstances  of  the  case  at  bar.  The  act  of  remov- 
ing goods  by  direction  of  the  wrongful  possessor  of  them  is  an  act  in 
derogation  of  the  title  of  the  rightful  owner;  but  the  party  doing  this 
honestly  is  protected  because  from  such  actual  possession  he  is  justi- 
fied in  believing  the  possessor  to  be  the  true  owner.  He  does  no  more 
than  such  possessor  might  himself  have  done  by  virtue  of  his  wrongful 
possession. 

The  defendant  was  a  job  teamster,  and  thus  in  a  small  way  a  com- 
mon carrier  of  such  wares  and  merchandise  as  could  appropriately  be 
transported  in  his  team  or  wagon.  He  exercised  an  employm.ent  of 
such  a  character  that  he  could  not  legally  refuse  to  transport  prop- 
erty such  as  he  usually  carried,  which  was  tendered  to  him  at  a  suit- 
able time  and  place  with  the  offer  of  a  reasonable  compensation.  If 
he  holds  himself  out  as  a  common  carrier,  he  must  exercise  his  calling 
upon  proper  request  and  under  proper  circumstances.  Buckland  v. 
Adajns  Express  Co.,  97  Mass.  124;  Judson  v.  Western  Railroad,  6 
Allen,  486.  His  means  of  ascertaining  the  true  title  of  the  freight 
confided  to  him  are  of  necessity  limited.  He  must  judge  of  this  as  it 
is  fairly  made  to  appear.  If  Whittier  had  actually  gone  into  the  room, 
as  he  might  readily  have  done,  and  taken  physical  possession  of  the 
goods,  the  defendant  upon  well-established  authority  would  have  been 
justified  in  obeying  the  order,  and  transporting  the  goods  to  Whittier 
at  another  place;  and  he  should  not  be  the  less  justified  where  Whit- 
tier, in  apparent  control  of  the  goods  in  his  own  house,  and  capable 


424  BURDITT   V.    HUNT.  [CHAP.  I. 

of  immediately  taking  them  into  his  actual  custody  by  entering  the 
room  through  the  unlocked  door,  has  directed  the  removal. 

If  a  person  standing  near  and  in  sight  of  a  bale  of  goods  lying  on 
the  sidewalk  belonging  to  another,  and  thus  in  the  legal  possession  of 
such  other,  is  able  at  once  to  possess  himself  of  it  actually,  although 
illegally,  and  directs  a  carrier  to  remove  it  and  deliver  it  to  him  at 
another  place,  compliance  with  this  order  in  good  faith  cannot  be 
treated  as  a  conversion;  and  apparent  control,  accompanied  with  the 
then  present  capacity  of 'investing  himself  with  actual  physical  pos- 
session, must  be  equivalent  to  illegal  possession  in  protecting  a 
carrier  who  obeys  the  order  of  one  having  such  control. 

Judgment  for  the  defendant. 

Note.  —  See,  accord,  Nanson  v.  Jacob,  93  Mo.  331,  339;  Greenway 
v.  Fisher,  1  C.  &  P.  190.  Note  the  remarks  of  ]\Ir.  Justice  Black- 
burn in  Hollins  v.  Fowler,  supra,  as  to  the  liability  of  common 
carriers. 


BURDITT  V.  HUNT. 

25  Me.  419.     1845. 

Trover  for  certain  goods.  It  appeared  from  the  evidence,  that  the 
property'  was  left  in  the  possession  of  Kellen,  the  mortgagor,  with 
authority  to  sell  as  agent  for  the  plaintiffs,  for  cash  and  in  small  par- 
cels. The  sale  of  part  of  these  goods  by  Kellen  to  Hunt,  under  which 
he  claimed,  was  not  within  the  authority,  and  the  plaintiffs  refused 
to  ratify  it.  The  exceptions  state,  that  it  was  contended  on  the  part 
of  McAIullen,  the  other  defendant,  that  he,  as  servant  of  Hunt, 
ignorant  alike  of  the  existence  of  the  mortgage  and  of  the  temis  of 
the  contract  of  sale  bj''  Kellen  to  Hunt,  and  of  anj'  circumstances 
tending  to  show,  that  the  sale  was  invalid,  was  sent  by  Hunt  to  bear 
the  articles  from  Kellen's  shop  to  Hunt's;  that  as  Hunt's  servant  he 
received  them  from  Kellen,  and  deposited  them  in  Hunt's  shop,  and 
had  no  further  connexion  with  them;  and  that  therefore  he  was  not 
liable  to  the  plaintiffs  in  this  action.  The  exceptions,  also,  state,  that 
there  was  evidence  in  the  case  tending  to  sustain  McMullen's  posi- 
tion. 

The  presiding  judge  instructed  the  jury,  that  the  mortgage  vested 
in  the  plaintiffs  title  to  all  the  goods  in  Kellen's  shop  on  the  first  day 
of  February;  and  that  if  Hunt  was  liable  in  this  action,  and  McMullen 
as  his  servant  aided  him  in  remo\'ing  the  goods,  then  McMullen  was 
liable  for  all  the  goods  he  so  removed. 

The  verdict  was  for  the  plaintiffs,  and  the  defendants  filed  excep- 
tions. 


SECT.  IV.]  BURDITT    V.    HUNT.  425 

Shepley,  J.  The  goods  having  been  left  in  the  possession  of  the 
mortgagor  with  authority  to  sell  them  for  cash  in  small  parcels,  he 
sold  and  delivered  those,  for  which  this  action  was  brought,  to  the 
defendant.  Hunt;  but  in  so  doing  exceeded  his  authority.  There  was 
testimony  tending  to  prove,  that  the  other  defendant,  McMullen,  as 
the  servant  of  Hunt,  was  sent  for  them,  and  that  he  received  them 
by  the  delivery  of  the  mortgagor,  and  deposited  them  in  Hunt's  shop; 
that  he  was  ignorant  of  the  existence  of  the  mortgage  and  of  the 
terms  of  the  sale  to  Hunt;  and  that  he  had  no  other  connexion  with 
them. 

The  jury  were  instructed,  if  Hunt  was  liable,  and  McMullen,  as 
his  servant,  aided  him  in  removing  the  goods,  he  would  be  liable  for 
those  which  he  removed.  A  servant,  who  receives  goods  delivered 
to  him  and  carries  and  delivers  them  to  his  master,  can  be  held 
responsible  for  them  in  action  of  trover,  only,  on  the  ground,  that  such 
a  removal  of  them  amounts  to  a  conversion.  If  such  a  position  could 
be  maintained,  common  carriers  and  other  persons,  by  receiving 
goods  delivered  to  them  by  a  person  in  possession  of  them,  and  carry- 
ing them  to  another  place,  would  thereby  be  made  liable  for  their 
value,  if  ic  should  afterward  be  made  to  appear  that  the  goods  were 
dehvered  without  authority  from  the  owner.  And  yet  the  possession 
of  personal  property  is,  'prima  facie,  evidence  of  ownership.  Such  a 
position  cannot  however  be  sustained.  Conversion  is  the  gist  of  the 
action  of  trover;  and  conversion  is  a  tort.  Dra-per  v.  Fulkes,  Yel.  165; 
Fuller  V.  Smith,  3  Salk.  366.  When  goods  come  to  the  possession  of  a 
person  by  delivery  or  by  finding,  he  is  not  liable  in  trover  for  them 
without  proof  of  a  tortious  act.  2  Saund.  47,  e.  Mulgrave  v.  Ogden, 
Cro.  Eliz.  219. 

The  reception  of  them  by  delivery  from  one  whom  he  is  entitled 
to  regard  as  the  owner,  and  the  convej'ance  from  him  to  another,  to 
whom  they  are  sent,  are  not  tortious  acts.  In  the  case  of  Parker  v- 
Godin,  2  Strange,  813,  the  defendant,  who  acted  as  the  friend  or 
servant  of  another,  was  held  liable  in  such  an  action,  because  he 
pawned  the  goods  in  his  own  name,  which  had  been  improperly 
delivered  to  him.  In  the  case  of  Perkins  v.  Smith,  1  Wil.  328,  a  bank- 
rupt after  the  act  of  bankruptcy  delivered  goods  to  a  servant  to  be 
carried  to  his  master,  and  the  servant  sold  them  for  his  master's  use, 
and  was  held  to  be  liable  for  them  in  such  an  action.  In  l)oth  these 
cases  the  servant  was  considered  to  be  liable  only  on  the  ground,  that 
they  committed  tortious  acts  by  pawning  and  selling  the  goods.  A 
refusal  to  deliver  goods  on  a  demand  made  by  the  owner  may  be  a 
tortious  act  and  a  conversion  by  one  who  is  in  possession  of  them. 
There  is  no  evidence  exhibited  in  this  case  tending  to  prove  that  the 
servant  committed  any  tortious  act;  or  that  he  assisted  his  master 
in  such  an  act. 

Exceptions  sustained,  and  new  trial  granted. 


426  LEONARD    V.    TIDD.  [CHAP.  I. 

LEONARD  V.  TIDD. 

3  Met.  (Mass.)  6.     1841. 

Trover  for  a  gun,  alleged  to  have  been  converted  by  the  defend- 
ants, on  the  9th  of  December,  1839. 

At  the  trial  in  the  court  of  common  pleas,  it  was  proved  that  the 
gun  was  the  property  of  the  plaintiffs.  Evidence  was  introduced  tend- 
ing to  show  that  Jerry  Leonard,  a  person  employed  in  the  plaintiffs' 
ser\ace,  was  in  the  habit  of  using  the  gun,  and  that  he  frecjuently 
offered  to  sell  it;  that  he  was  indebted  to  the  defendants,  who  were 
partners  in  trade,  and  left  the  gun  in  their  hands,  in  October,  1839, 
as  security  for  the  debt;  that,  during  the  same  month,  he  sold  and 
delivered  the  gun  to  Allen  Pratt,  who  has  ever  since  retained  the 
same;  and  that  the  plaintiffs,  on  the  10th  of  December,  1839, 
demanded  the  gun  of  Tidd,  one  of  the  defendants. 

The  evidence,  as  to  the  said  sale,  tended  to  prove  "that  the  bargain 
for  the  gun  was  made  between  said  Jerry  and  Pratt,  at  the  defend- 
ants' house ;  that  Jerry  wished  Pratt  to  buy  the  gun  and  pay  So  for  it 
to  the  defendants,  to  which  Pratt  assented,  if  the  defendants  would 
take  him  as  paymaster  for  that  sum;  that  Jerry  thereupon  asked 
Clapp,  one  of  the  defendants,  if  he  would  take  Pratt  as  paATuaster 
for  $5,  towards  the  sum  which  Jerry  owed  the  defendants,  and  for 
which  the  gun  was  pledged  to  them,  and  that  Clapp  agreed  so  to  do; 
and  that  Jerry  thereupon  took  the  gun  from  a  room  in  the  defend- 
ants' house,  and  delivered  it  to  Pratt." 

The  plaintiffs  did  not  rely  upon  their  demand  of  the  gun,  to  charge 
the  defendants  with  a  conversion,  but  upon  the  sale  thereof  made  to 
Pratt.  The  defendants  contended,  that  if  said  sale  were  made  by 
their  permission,  yet  that  they  could  not  be  charged  in  trover,  inas- 
much as  the  gun  was  put  into  their  hands  by  said  Jeriy,  who  was  in 
possession  thereof,  and  they  supposed  it  to  be  his  property,  and 
parted  with  it  on  the  belief  that  he  had  a  right  to  dispose  of  it.  But 
the  court  ruled  otherwise.  The  defendants'  counsel  requested  the 
court  to  instruct  the  jury,  "that  if  the  defendants  did  nothing  to- 
wards the  sale,  except  to  assent  to  it  so  far  as  to  agree  to  accept,  in  pay 
for  their  claim  against  Jerry,  the  sum  for  which  he  sold  the  gun,  it 
would  not  be  a  conversion."  But  the  court  ruled  that  it  would  be  a 
conversion. 

The  jury  found  a  verdict  for  the  plaintiffs,  and  the  defendants 
alleged  exceptions  to  the  ruling  of  the  court. 

Wilde,  J.  The  only  question  in  this  case  is,  whether  the  facts 
proved  at  the  trial  do  in  law  constitute  a  conversion,  as  charged  in  the 
writ.  The  case  is  trover  for  the  conversion  of  a  gun,  which  the  defend- 
ants admit  was  the  property  of  the  plaintiffs.  It  was  proved  that  one 
Jerry  Leonard,  being  indebted  to  the  defendants,  delivered  the  gun 


SECT.  IV.]  NELSON   V.    IVEESON.  427 

to  them  as  security  for  the  debt,  and  that  afterwards  the  plaintiffs 
demanded  the  gun  of  one  of  the  defendants.  But  the  plaintiffs  do  not 
rel}'  on  this  demand  as  evidence  of  a  conversion;  as  the  gun,  before 
the  demand,  had  been  taken  away  by  said  Jerry,  with  the  defendants' 
consent,  and  had  been  sold  by  him  to  one  Pratt.  The  only  e\ddence, 
relied  on  to  prove  a  conversion  by  the  defendants,  is  the  proof  that 
this  sale  was  made  with  their  consent.  It  was  proved  that  the  bar- 
gain for  the  gun  was  made  between  the  said  Jerry  and  Pratt,  and 
that  Pratt  agreed  to  purchase  the  gun  for  the  sum  of  five  dollars,  to  be 
paid  to  the  defendants,  if  they  would  consent  to  take  him  as  pay- 
master;  to  which  the  defendants  assented.  There  was  no  proof  that  the 
defendants  had  any  knowledge  that  the  gun  was  the  plaintiffs'  prop- 
erty, or  any  reason  to  suppose  that  it  was  not  the  property  of  Jerry. 
But  it  was  ruled  by  the  court  that  this  sale,  with  the  permission  of 
the  defendants,  would  be  a  conversion  by  them,  although  they  sup- 
posed that  the  gun  belonged  to  Jerry  at  the  time.  It  is  now  contended 
by  the  plaintiffs'  counsel,  that  the  juiy  had  a  right  to  infer  from  the 
e^'idence  that  the  defendants  joined  in  the  sale;  but  we  think  no  such 
inference  can  be  made ;  and  it  is  not  to  be  supposed  that  it  was  made 
by  the  jury.  For  it  was  ruled  by  the  court,  that  the  assent  to  the  sale, 
by  the  defendants,  and  their  agreeing  to  receive  the  purchase  money, 
would  amount  to  a  conversion.  The  orAy  evidence  against  the  de- 
fendants w^as,  that  they  received  the  gun  as  a  pledge  from  Jerrj',  and 
afterwards  restored  it  to  him  and  took  other  security,  and  that  the 
gun  was  sold  by  Jerry. 

The  receiving  of  the  gun  from  the  person  who  had  the  possession, 
and  restoring  it  to  him,  under  the  circumstances  proved,  cannot  be 
considered  as  a  tortious  act,  and  does  not  amount  to  a  conversion. 
We  think,  therefore,  on  the  evidence  reported,  this  action  cannot 
be  maintained.  New  trial  ordered. 

Note.  —  A  fortiori,  mere  taking  and  holding  as  a  bailee  is  not  a 
conversion.  Deering  v.  Austin,  34  Vt.  330. 


NELSON  V.   IVERSON. 

17  Ala.  216.      1850. 

This  was  an  action  of  detinue  instituted  by  the  plaintiff  against 
the  defendant  in  error  to  recover  two  slaves,  which  he  claimed  by 
virtue  of  a  parol  gift  from  his  uncle,  Garland  Dawkins.  The  proof 
tended  to  show  that  in  1823  the  said  Garland  Dawkins  gave  a  slave 
by  the  name  of  Lucy  and  the  mother  of  those  sued  for  to  tlie  ]ilain- 
tiff,  who  was  then  an  infant,  and  delivered  possession  to  his  mother, 
Mrs.  Martha  Nelson;  that  Mrs.  Nelson  retained  the  possession  of  Lucy 


428  NELSON   V.    IVERSON.  [CHAP.  I. 

intil  1830,  when  the  said  Garland  Dawkins  obtained  the  possession  of 
her  from  Mrs.  Nelson,  and  retained  it  until  his  death  in  1838;  that  the 
defendant  in  1848  hired  the  slaves  sued  for,  who  are  the  children  of 
Lucy,  from  the  widow  of  Garland  Dawkins,  under  an  express  agree- 
ment that  he  would  deliver  them  to  her  at  any  time  that  she  should 
think  proper  to  demand  them;  and  that  she  demanded  and  retook 
the  possession  of  them  before  the  institution  of  this  suit,  but  not 
before  the  defendant  had  notice  of  plaintiff's  claim.  The  court  gave 
two  charges  to  the  jury,  which  in  substance  affirmed  the  proposition 
that  although  the  jury  should  believe  that  the  slaves  sued  for  were 
the  property  of  the  plai'ntiff ,  yet  if  the  defendant  hired  them  from 
the  widow  of  Garland  Dawkins  under  an  agreement  that  he  was  to 
re-deliver  them  to  her  on  demand,  and  they  were  re-delivered  to  her 
on  such  demand  before  the  institution  of  this  suit,  the  plaintiff  is 
not  entitled  to  recover,  notwithstanding  the  defendant  ma}'  have 
had  notice  of  his  claim  before  he  gave  up  the  possession  of  the  slaves. 
Chilton,  J.  As  this  case  must  go  back  for  another  trial,  it  is 
unnecessary  for  us  to  give  to  the  charges  of  the  court  which  were 
excepted  to,  a  critical  examination.  It  ^A'ill  be  sufficient  for  the 
further  action  of  the  court  below  that  we  state  the  law  upon  the 
point  raised  by  the  charges.  It  cannot  be  the  law,  that  if  the  way- 
faring man  stop  at  my  house  and  I  extend  to  him  the  usual  civili- 
ties and  courtesies  of  life,  feed  his  horse  and  take  charge  of  his 
baggage,  that  after  I  have  restored  to  him  his  horse  and  baggage, 
without  notice  or  demand  of  the  true  owner,  I  should  be  liable  in 
detinue  or  any  other  action  for  the  property  thus  temporarily  in 
my  possession.  The  application  of  such  a  principle,  as  has  been 
justly  remarked,  "  would  bring  about  a  state  of  distrust  and  sus- 
picion tending  to  destroy  the  courtesies  of  life,  and  to  clog  the  busi- 
ness transactions  of  society." — Per  Underwood,  J.,  dissenting,  1 
Dana's  Rep.  122.  We  take  the  true  doctrine  to  be  this:  If  the  bailee 
have  the  temporary  possession  of  property,  holding  the  same  as  the 
property  of  the  bailor  and  asserting  no  title  in  himself,  and  in  good 
faith  in  fulfilment  of  the  terms  of  the  bailment,  either  as  expressed 
by  the  parties  or  implied  by  law,  restores  the  property  to  the  bailor 
before  he  is  notified  that  the  true  owner  w411  look  to  him  for  it,  no 
action  will  lie  against  him,  for  he  has  only  done  what  was  his  duty. 
Whether,  if  a  bailee  sell  the  goods  to  a  third  person  by  virtue  of  a 
supposed  authority  derived  from  the  constituent,  when  such  principal 
having  no  title  could  confer  no  authority,  he  would  be  liable,  is  a 
question  outside  the  facts  of  this  case,  and  one  which  we  do  not 
decide.  All  we  assert  is,  that  if  the  defendant  in  this  case,  in  good 
faith,  hired  the  property  in  dispute,  and  before  the  true  o^vner  asserted 
his  claim  had  honestly  restored  it  to  the  bailor,  not  having  put  it 
out  of  his  possession  for  the  purpose  of  avoiding  this  action  of  deti- 
nue, he  is  not  liable  to  the  owner  of  the  property  in  this  suit. 


SECT.  IV.]  HUDMON   V.    DUBOSE.  429 

Note.  —  Loring  v.  Mulcahy,  3  All.  (Mass.)  575.  The  court  held 
that  a  depositary  who  returns  chattels  to  his  depositor,  knowing 
they  are  not  the  chattels  of  the  depositor,  has. not  converted  them. 


HUDMON  V.  DUBOSE. 

85  Ala.  446.     1888. 

Appeal  from  the  Circuit  Court  of  Lee. 

Tried  before  the  Hon.  Jesse  M.  Carmichael. 

This  action  was  brought  by  E.  P.  DuBose  against  the  appellants, 
to  recover  damages  for  their  alleged  conversion  of  two  bales  of  cot- 
ton; and  was  commenced  on  the  15th  April,  1881.  The  defendants 
pleaded  not  guilty,  and  a  special  plea  averring  that  they  received 
the  cotton  as  warehousemen,  for  storage  only,  and  delivered  it  up 
on  production  of  their  receipt,  without  notice  of  plaintiff's  right  or 
claim;  and  issue  was  joined  on  both  of  these  pleas.  The  cotton  was 
raised  in  Macon  county,  during  the  year  1880,  on  lands  cultivated 
by  F.  D.  May  and  B.  A.  Roberts;  and  it  was  carried  by  one  of  them, 
in  company  with  W.  R.  Chapman,  on  the  6th  November,  1880,  to 
Opelika,  in  Lee  county,  and  there  stored  in  the  warehouse  of  the 
defendants,  who  gave  a  warehouse  receipt  for  it;  and  they  delivered 
it,  a  few  days  afterwards,  to  some  third  person,  whose  name  does 
not  appear,  on  his  production  of  the  receipt.  The  plaintiff  claimed 
the  cotton  under  two  mortgages  executed  to  him  by  said  ]\Iay  and 
Roberts,  which  were  read  in  evidence  without  objection.  These 
mortgages  were  given  for  advances  to  make  a  crop,  on  certain  lands 
in  Macon  county;  each  being  dated  June  1st,  1880,  and  conveying, 
with  other  personal  property,  the  entire  crop  of  cotton  to  be  raised 
on  said  lands  during  that  year.  Each  of  said  mortgages  was  duly 
recorded  in  Macon  county,  in  July,  1880,  and  the  law-day  of  each 
was  October  1st,  1880.  The  plaintiff,  learning  that  the  cotton  had 
been  carried  to  Opelika,  went  to  that  city  on  the  16th  November, 
and  made  inquiry  at  the  different  warehouses;  and  he  was  informed 
by  the  defendants,  after  examining  their  books,  that  the  cotton  had 
been  stored  with  them  for  a  few  days,  and  that  they  had  delivered 
it  to  a  person  who  produced  their  receipt  to  Chapman;  but  they  de- 
clined to  state  the  name  of  that  person.  The  defendants,  it  is  stated, 
had  no  previous  acquaintance  with  plaintiff,  never  saw  him  before, 
and  had  no  actual  notice  of  his  right  to  claim  the  cotton;  and  it  is 
further  stated,  also,  that  "there  was  no  evidence  showing  the  in- 
dorsement in  writing  of  said  cotton  receipt." 

On  these  facts,  "there  being  no  conflict  in  the  evidence,  the  court 
charged  the  jury,  among  other  things,  that  the  recording  of  said 
mortgages  in  Macon  county  was  such  notice  as  would  make  the  de- 


430  HUDMON    V.    DUBOSE.  [cHAP.  I. 

fendants  liable,  if  the  jury  should  believe  from  the  evidence  that  the 
iotton  was  raised,  on  the  lands  described,  during  the  year  1880;  al- 
though they  might  also  believe  that  the  defendants  only  received. 
the  cotton  as  warehousemen  on  storage  only,  and  never  claimed  any 
other  control  over  it  than  as  warehousemen,  and  never  knew,  as 
fact,  during  the  time  they  held  it,  that  plaintiff  had  or  made  any 
claim  to  it."  The  defendants  excepted  to  this  charge,  and  they  here 
assign  it  as  error,  together  with  the  refusal  of  several  charges  asked 
by  them. 

SoMERViLLE,  J.  In  Lee  v.  Matthews,  10  Ala.  682;  s.c.  44  Amer. 
Dec.  498,  decided  as  far  back  as  1846,  the  rule  was  settled  by  this 
court,  in  accordance  with  the  English  authorities,  that  an  agent, 
who  intermeddles  with  the  goods  of  another,  is  guilty  of  a  conversion, 
if  the  same  act  of  intermeddling  by  his  principal  would,  under  like 
circumstances,  have  rendered  the  latter  liable  in  trover.  It  was  said 
by  Ormond,  J.,  that  ''every  act  of  intermeddling  with  the  goods  of 
another  is  a  conversion;  and  it  is  no  answer  to  the  true  owner,  that 
the  person  so  receiving  the  goods  was  ignorant  of  his  title,  or  that  he 
received  them  for  the  use  or  benefit  of  another."  The  same  rule  is 
reiterated  in  Perminter  v.  Kelly,  18  Ala.  716,  decided  in  1851,  and 
is  fully  sustained  by  the  weight  of  authority.  Marks  v.  Robinson,  82 
Ala.  69,  83. 

The  only  exception  to  this  rule,  which  our  decisions  have  estab- 
lished, is  stated  in  Nelson  v.  Iverson,  17  Ala.  216,  the  authority  of 
which  is  recognized  in  Marks  v.  Robinson,  supra  (1886).  This  excep- 
tion is,  that  the  mere  receiving  of  goods  by  one  who  restores  them 
to  his  bailor,  before  notice  that  such  bailor's  possession  was  wrong- 
ful, is  not  a  conversion. 

Under  the  above  principles,  the  appellants  were  clearly  guilty  of 
a  conversion,  in  receiving  the  appellee's  cotton  and  shipping  it  on 
his  order,  unless  they  come  within  the  exception  announced  in  Nel- 
son Y.  Iverson,  supra.  It  is  insisted  in  argument,  that  such  shipment 
is  legally  tantamount  to  restoring  the  cotton  to  the  possession  of 
the  bailor.  The  rule,  in  our  judgment,  can  not  be  construed  to  go  this 
far.  The  exception  in  question  only  embraces  the  act  of  restoring 
the  thing  bailed  to  the  mere  possession  of  the  bailor  —  a  substantial 
restoration  of  the  original  status  in  quo  of  the  property.  It  does  not 
include  a  restoration  of  the  bailor's  dominion  by  an  act,  the  essential 
nature  of  which  is  in  defiance  of  the  true  owner's  title,  or  the  prob- 
able consequence  of  which  will  be  to  put  the  property  beyond  his 
reach.  And  such  is  the  act  of  conversion  here  imputed  to  the  appel- 
lants. The  rulings  of  the  Circuit  Court  touching  this  point  are,  in 
our  opinion,  free  from  error. 

The  registration  of  the  appellee's  mortgage  on  the  cotton  in  con- 
troversy was  constructive  notice  to  the  appellants  of  the  existence 
of  the  mortgage,  and  as  binding  on  them  as  actual  notice  would  have 


SECT.  IV.l  HUDMON    V.    DUBOSE,  431 

been.  Mayer  v.  Taylor,  69  Ala.  403;  s.  c.  44  Amer.  Rep.  522;  Hefli'f 
V.  Slay,  78  Ala.  180;  Marks  v.  Robinson,  82  Ala.  69. 

The  judgment  is  affirmed. 

Note.  —  Hill  v.  Haijes,  38  Conn.  532.  A  placed  certain  money, 
which  he  had  stolen,  in  the  hands  of  B  as  a  depositary',  and  B  after- 
wards delivered  the  money  to  C,  with  instructions  to  deliver  it  to 
A.  The  court  held  that  this  was  not  a  conversion  by  B,  even  if,  at 
the  time  of  the  delivery  to  C,  B  had  a  suspicion,  founded  on  reason- 
able or  probable  cause,  that  the  money  had  been  stolen  by  A. 

In  Parker  v.  Lombard,  100  Mass.  405,  the  court  said  (p.  408) : 
"If  the  bailee,  being  intrusted  with  the  possession  merely,  transfers 
the  possession  according  to  the  directions  of  the  person  from  whom 
he  received  it,  without  notice  of  any  better  title,  and  without  under- 
taking to  convey  any  title,  this  does  not  appear  to  have  been  held 
any  evidence  of  a  conversion." 


432  GILSON   V.    FISK.  [CHAP.  I. 

D.  Riddance  of  the  Possession. 


STEVENS  V.  CURTIS. 

18  Pick.  (Mass.)  227.     1836. 

In  this  case  it  was  resolved,  that  if  a  man  finds  stray  cattle  in  his 
field,  he  is  not  bound  to  impound  them  or  retain  them  for  the  OT\-ner, 
but  may  drive  them  off  into  the  highway,  without  being  guilty  of  a 
conversion. 

Note.  —  See,  accord,  Wilson  v.  McLaughlin,  107  Mass.  587,  590; 
Bonney  v.  Smith,  121  Mass.  155;  Medlin  v.  Balch,  102  Tenn.  710, 
712;  Tohin  v.  Deal,  60  Wis.  87,  91. 

See  also  McGonigle  v.  Belleisle  Co.,  186  Mass.  310. 


GILSON  V.  FISK. 

8  N.H.  404.     1836. 

This  was  an  action  upon  the  case.  The  declaration  alleged,  that 
whereas,  on  the  22d  July,  1834,  a  flock  of  sheep,  the  property  of 
the  plaintiff,  were  in  a  certain  close  of  the  defendant,  in  Dunstable, 
and  the  defendant  drove  the  said  sheep  from  his  close  aforesaid,  the 
defendant  wrongfully  and  injuriously,  and  intending  to  injure  the 
plaintiff,  continued  to  drive  and  did  drive  the  said  sheep  to  a  great 
distance,  to  wit,  a  distance  of  three  miles,  and  away  from  the  habitation 
of  the  plaintiff,  in  consequence  of  which  eight  sheep  were  lost,  and  the 
plaintiff  put  to  great  trouble  and  expense  in  looking  for  the  same. 

Richardson,  C.J.,  delivered  the  opinion  of  the  court. 

It  is  alleged  by  the  plaintiff  that  the  sheep  were  in  the  close  of  the 
defendant,  and  that  the  latter  drove  them  out.  Prima  fade,  when 
the  sheep  of  one  man  are  in  the  close  of  another,  the  owTier  of  the 
close  has  a  right  to  drive  them  out.  We  must,  therefore,  understand  in 
this  case,  that  when  the  defendant  drove  the  sheep  from  his  pasture, 
he  was  exercising  a  license  which  the  law  allowed.  But  it  is  farther 
alleged,  that  having  driven  the  sheep  from  the  pasture,  the  defend- 
ant undertook  to  drive  them  away  to  a  great  distance.  This,  in  our 
opinion,  was  an  abuse  of  the  license  by  law  allowed,  which  made  him 
a  trespasser,  ah  initio.  When  one  hires  a  horse  to  go  an  agreed  dis- 
tance, and  goes  beyond  that  distance,  he  is  liable  in  trover  for  an 
unlawful  conversion  of  the  horse.  Wheelock  v.  Wheelwright,  5  Mass. 
R.  104.  And  an  act  which  if  done  in  abuse  of  an  authority  given  by 
an  individual,  amounts  to  a  conversion,  will,  when  done  in  abuse  of 
an  authority  given  by  law,  make  the  party  a  trespasser  ah  initio. 


SECT,  v.]  WOODMAN   V.    HUBBARD.  433 


SECTION  5. 
USING  THE  CHATTEL. 


WOODMAN  V.   HUBBARD. 

25  N.H.  67.      1852. 

The  second  count  was  in  trover  for  an  alleged  conversion  of  the 
horse. 

The  defendant,  on  Sunday,  hired  the  plaintiff's  horse  to  go  from 
the  Great  Falls  Village  to  South  Berwick  Village,  and  agreed  to  pay 
a  stipulated  price  therefor.  He  drove  the  horse  to  South  Berwick 
Village  and  thence  to  another  place  some  miles  beyond.  He  returned 
with  the  horse  to  Great  Falls  Village  on  the  evening  of  the  same  day, 
and  re-delivered  the  horse  to  the  plaintiff.  The  horse  died  the  next 
day.  There  was  evidence  tending  to  show  that  the  death  of  the  horse 
was  occasioned  by  the  unreasonable  and  immoderate  driving  of  the 
defendant.  The  defendant  contended  that  the  plaintiff  could  not 
recover,  as  the  horse  was  let  under  a  contract  made  on  Sunday,  and 
for  the  purpose  of  performing  a  service  on  that  day. 

Perley,  J.  The  action  of  trover  is  founded  upon  property  in  the 
plaintiff,  and  a  conversion  by  the  defendant.  A  conversion  consists 
in  an  illegal  control  of  the  thing  converted,  inconsistent  with  the 
plaintiff's  right  of  property.  If  one  hire  a  horse  to  be  driven  to  one 
place,  and  voluntarily  drive  him  to  another,  it  is  a  conversion,  and 
trover  will  lie.  Wheelock  v.  Wheelwright,  5  Mass.  104. 

This  is  in  accordance  with  the  law  in  other  cases,  where  the  bailee 
for  one  purpose  diverts  the  thing  bailed  to  another;  as  where  a  car- 
rier uses,  or  sells,  or  delivers  to  the  wrong  party,  the  commodity  which 
he  received  to  transport.  The  circumstance  that  the  property  is  in 
the  hands  of  the  bailee  with  the  license  of  the  owner  to  use  it  for  on( 
purpose,  gives  no  right  to  use  it  for  another;  and  the  invasion  of  the 
owner's  right  of  property  is  as  complete,  when  the  bailee  goes  beyond 
his  license  and  duty,  as  if  the  control  over  the  property  were  usurped 
without  any  bailment.  There  can  be  no  doubt,  on  the  authorities, 
that  trover  would  be  a  proper  remedy  in  this  case,  if  the  illegality  of 
the  contract,  on  which  the  defendant  took  the  horse  into  his  posses- 
sion, had  not  been  set  up  as  a  defence. 

If,  however,  though  there  has  been  in  this  case  a  technical,  legal 
conversion,  the  real  and  sul^stantial  claim  of  the  plaintiff  is  merely 
to  recover  damages  for  the  breach  of  an  illegal  contract;  if  he  must, 
notwithstanding  the  form  of  his  action,  claim  in  fact  by  and  through 


434  HOOKS    V.    SMITH.  [CHAP.  I. 

his  contract,  he  cannot  evade  the  consequences  of  his  illegal  act  by 
adopting  a  fictitious  action,  allowed  in  ordinary  cases  for  the  pur- 
poses of  the  remedy.  In  some  cases  the  plaintiff,  for  convenience  of 
his  remedy,  when  his  claim  arises  under  a  contract,  is  allowed  to 
allege  his  gravamen  in  a  criminal  neglect  of  duty  in  the  manner  of 
performing,  or  in  neglecting  to  perform,  the  contract.  Govett  v.  Rad- 
nidge,  3  East,  62.  But  in  such  case,  by  varying  the  form  of  the  rem- 
edy, the  plaintiff  carmot  deprive  his  adversary  of  any  defence,  such 
as  infancy,  which  he  might  have  set  up,  if  the  claim  had  been  made 
for  a  breach  of  the  contract.  Jennings  v.  Randall,  8  T.  R.  335 ;  Green 
v.  Greenbank,  2  Marshall,  485  (4  C.  L.  375);  Fitts  v.  Hall,  9  X.H. 
Rep.  441. 

The  question,  then,  becomes  material  whether  the  only  real  in- 
jury which  the  plaintiff  suffered  was  by  a  breach  of  the  contract; 
or  whether  the  driving  of  the  horse  to  another  place  was  a  sub- 
stantial invasion  of  the  plaintiff's  right  of  property. 

When  the  defendant  voluntarily  drove  the  horse  bej^ond  the  limits 
for  which  he  was  hired,  he  acted  wholly  without  right.  He  then 
took  the  horse  into  his  own  control,  without  any  authority  or  license 
from  the  owner.  The  conversion  was  in  law  as  complete,  the  wrongful 
invasion  of  the  plaintiff's  right  of  property  was  as  absolute  as  if, 
instead  of  driving  the  horse  a  few  miles  beyond  the  place  for  which 
he  had  hired  him,  he  had  detained  and  used  him  for  a  year,  or  any 
other  indefinite  time,  or  had  driven  him  to  market  and  sold  him. 
If  taking  the  wrongful  control  of  the  horse,  and  dri\ang  him  ten 
miles,  was  not  a  substantial  conversion,  how  far  must  the  defendant 
have  driven  him?  how  long  must  he  have  detained  him?  and  what 
other  and  further  wrongful  acts  was  it  necessary  that  he  should  do, 
in  order  to  make  himself  a  substantial  and  real  wrong-doer?  It  would 
seem  to  be  quite  clear,  that  if  the  original  act,  assuming  control 
over  the  horse,  was  not  a  substantial  invasion  of  the  plaintiff's  right 
of  property,  no  subsequent  use  or  abuse  of  the  horse  by  the  defendant 
could  make  it  so;  and  that  if  the  defendant  cannot  on  the  facts  of 
this  case  be  charged  for  the  conversion  of  the  horse,  he  could  not 
have  been  if  he  had  sold  or  wilfully  destroyed  him. 

Note.  —  See,  accord,  Fail  v.  McArfhur,  31  Ala.  26,  32;  Morton  v. 
Gloster,  46  Me.  520;  Horsehj  v.  Branch,  1  Humph.  (Tenn.)  199;  Hart 
V.  Skinner,  16  Vt.  138, 144. 


HOOKS   V.  SMITH. 

18  Ala.  338.    1850. 

Pahsoxs,  J.  The  defendant  below  having  hired  the  slave  for  house 
service,  afterwards  put  her  as  a  hand  upon  the  plantation,  and  in 


SECT,  v.]  FARKAS    V.    POWELL.  435 

that  business  she  lost  her  life.  For  this  he  was  clearly  liable  for  her 
value.  It  is  said  by  Judge  Story  that  "there  is,  on  the  part  of  the 
hirer,  an  implied  obligation,  not  only  to  use  the  thing  with  due  care 
and  moderation,  but  also  not  to  apply  it  to  any  other  use  than  that 
for  which  it  is  hired,''  and  he  adds,  that  if  the  thing  is  used  for  a  dif- 
ferent purpose  than  that  which  was  intended  by  the  parties,  the  hirer 
is  responsible  for  all  damages,  and  if  a  loss  afterwards  occurs,  al- 
though by  inevitable  casualty,  he  will  generally  be  responsible  there- 
for. 

Note.  —  See,  accord,  Palmer  v.  Mayo,  80  Conn.  353,  356;  Kelly 
V.  White,  17  B.  Mon.  (Ky.)  124;  Lucas  v.  Trumbull,  15  Gray  (Mass.) 
306;  Fisher  v.  Kyle,  27  Mich.  454;  McCurdy  v.  Wallblom  Co.,  94 
Minn.  326;  Beach  v.  Raritan  R.R.  Co.,  37  N.Y.  457,  468;  Lane  v. 
Cameron,  38  Wis.  603. 


FARKAS   V.    POWELL. 

86  Ga.  800.     1891. 

Simmons,  J.  Powell  hired  from  Farkas  a  horse  to  ride  from  Albany 
to  the  Whitehead  place,  in  the  country,  a  distance  of  five  miles,  and 
was  to  return  by  eleven  o'clock  at  night.  When  he  arrived  at  the 
Whitehead  place,  he  learned  that  the  person  he  wished  to  see  was  at 
the  Bryant  place,  three  or  four  miles  beyond,  and  he  rode  on  to  that 
point.  He  remained  at  the  Bryant  place  some  two  hours  and  a  half, 
and  left  there  for  Albany  about  half  past  nine  in  the  evening.  On  his 
return,  and  after  getting  between  the  Whitehead  place  and  Albany, 
the  horse  fell  in  the  road.  After  considerable  trouble,  he  got  the  horse 
on  his  feet  and  led  him  about  three  miles,  and  when  within  about  a 
mile  of  Albany,  the  horse  again  fell,  and  he  had  to  obtain  the  assist- 
ance of  two  colored  men  living  near  by,  to  again  get  the  horse  upon 
his  feet.  He  then  took  the  horse  to  the  lot  of  one  of  these  men  and 
left  him  there,  and  about  daylight  in  the  morning,  walked  on  to  the 
town  and  notified  Farkas's  stable-man  where  the  horse  was  and  of 
his  condition.  The  horse  died  within  a  day  or  two  thereafter.  Farkas 
brought  suit  against  Powell,  alleging,  in  substance,  that  he  had  rid- 
den the  horse  three  miles  beyond  the  place  he  had  hired  him  to  go, 
and  that  by  negligence  or  cruelty  the  horse  had  been  so  injured  that 
he  died.  The  evidence  for  the  plaintiff  tended  to  show  that  on  the 
afternoon  when  the  horse  was  hired  to  Powell,  it  was  sound  and  in 
good  condition,  moved  off  briskly  down  the  street  and  showed  no 
signs  of  any  disease,  but  that  when  returned  the  next  morning,  it  was 
lame  and  could  scarcely  walk  and  had  a  halter  burn  around  one  of  its 
feet.  The  evidence  for  the  defendant  tended  to  show  that  he  rode  the 


436  FARKAS    V.    POWELL.  [cHAP.  I. 

horse  moderately,  never  going  faster  than  a  trot,  that  at  the  Bryant 
place  he  hitched  it  to  a  post,  that  there  was  no  halter  or  rope  around 
its  foot  while  in  his  possession,  and  that  in  returning  from  the  Brj'ant 
place  he  rode  the  horse  in  a  walk  until  it  suddenly  fell  in  the  road. 
An  expert  in  diseases  of  horses  testified  that  in  his  opinion  the  horse 
was  paralyzed,  and  that  this  may  have  been  produced  by  straining. 
There  was  also  evidence  that,  a  day  of  two  before  the  hiring,  the 
horse  had  been  used  in  hauling  dirt.  Powell  also  testified  that,  about 
a  year  before,  he  had  hired  another  horse  from  Farkas  to  go  to  the 
same  place,  and  rode  three  or  four  miles  farther  than  he  intended  to 
go,  and  that  when  informed  of  it  on  his  return,  Farkas  said  it  was  all 
right,  and  did  not  charge  him  for  the  extra  time  or  distance. 

On  this  state  of  facts  the  trial  judge  charged  the  jury,  in  substance, 
that  if  Powell  exercised  ordinary  care  in  riding  the  horse  and  attend- 
ing to  it  while  in  his  possession,  it  did  not  make  any  difference  whether 
he  rode  it  beyond  the  Whitehead  place  or  not ;  that  if  Powell  was  not 
at  fault  in  riding  and  in  his  attention  to  the  horse,  he  could  not  be 
held  liable  because  he  went  a  greater  distance  than  he  had  hired  the 
horse  to  go,  although  it  may  have  been  injured  by  accident  or  other- 
wise without  his  fault  in  going  this  extra  distance.  The  jury  found 
for  the  defendant,  and  the  plaintiff  made  a  motion  for  a  new  trial. 

We  think  this  charge  was  error.  When  Powell  hired  the  horse  from 
Farkas  to  go  five  miles  to  the  Whitehead  place,  he  had  no  right,  under 
his  contract,  to  go  beyond  that  point  without  the  consent  of  Farkas; 
and  when  he  did  go  beyond,  it  was  at  least  a  technical  conversion, 
or  a  violation  of  his  contract  and  duty.  And  if  the  horse  had  been 
injured  while  beyond  the  point  to  which  he  was  hired  to  go,  Powell 
undoubtedly  would  have  been  liable,  whether  the  injury  was  caused 
by  his  own  negligence  or  by  the  negligence  of  others,  or  even  by 
accident ;  unless  he  was  forced  to  go  beyond  that  point  by  circum- 
stances which  he  could  not  control.  For  example,  if  a  bridge  had 
been  washed  away,  or  the  road  was  impassable  and  in  consequence 
he  had  to  take  a  longer  road  in  order  to  go  to  the  Whitehead  place,  he 
would  then  be  liable  only  for  his  o\\ti  negligence.  This  principle 
seems  to  be  sustained  by  the  following  authorities:  Story  on  Bail- 
ments, §  413  et  seq.,  and  authorities  there  cited;  Schouler  on  Bail- 
ments, §  139,  and  authorities  cited.  But  the  nice  question  in  this 
case  is,  would  Powell,  after  having  been  guilt}^  of  a  technical  con- 
version or  violation  of  his  duty  and  having  returned  within  the  limits 
of  the  original  hiring,  and  the  horse  then  sustained  injury  without 
other  fault  on  his  part,  be  liable?  That  would  depend,  in  our  opinion, 
upon  whether  the  extra  ride  of  six  or  eight  miles  to  the  Bryant  place 
and  back  caused  or  materially  contributed  to  the  accident.  If  it  did, 
we  think  he  would  be  liable  to  the  owner.  The  horse  might  have  been 
well  able  to  travel  the  five  miles  and  return,  but  the  six  or  eight  miles 
extra  may  have  fatigued  him  to  such  an  extent  as  to  have  caused  him 


SECT,  v.]  HARVEY  V.    EPES.  437 

to  stumble  and  fall,  and  thus  produced  the  injury.  If,  however,  the 
extra  ride  did  not  cause  or  materially  contribute  to  the  injury,  we  do 
not  think  Powell  would  be  liable,  if  guilty  of  no  other  fault.  We  can 
see  no  good  reason  to  hold  the  hirer  hable  for  an  injury  to  the  horse 
which  occurred,  without  his  fault,  after  he  had  returned  with  it 
within  the  limits  of  his  original  contract,  although  he  had  been 
guilty  of  a  technical  conversion  by  riding  it  three  miles  beyond  the 
point  to  which  it  was  hired  to  go,  the  extra  distance  not  causing  or 
contributing  to  the  injury. 

We  have  been  unable  to  find  any  case  the  facts  of  which  are  like  the 
facts  in  this.  Nearly  all  the  cases  which  hold  the  hirer  liable  when  he 
has  deviated  from  the  terms  of  his  contract,  are  cases  in  which  he  was 
negligent  in  fact  or  wilfully  and  wantonly  misconducted  himself,  or 
had  overdriven  the  horse  or  destroyed  or  ruined  the  property  while 
beyond  the  limits  or  in  the  course  of  deviation  from  the  purpose  of 
the  hiring.  The  cases  cited  in  the  brief  of  counsel  for  the  plaintiff  in 
error  were  all  of  this  character.  See  Mayor,  etc.  of  Columbus  v.  Hoic- 
ard,  6  Ga.  213;  Gorman  v.  Campbell,  14  Ga.  137;  Collins  v.  Hutchins, 
21  Ga.  270;  Lewis  v.  McAfee,  32  Ga.  465;  Malone  v.  Robinson,  77 
Ga.719.  So  likewise  were  nearly  all  the  cases  referred  to  in  Schouler 
and  Story,  supra.  The  facts  in  those  cases  show  that  the  property 
was  injured  or  destroyed  during  the  time  it  was  being  improperly 
used,  or  being  used  for  a  different  pui-pose  from  that  for  which  it 
was  hired. 

The  question  whether  this  extra  ride  did  or  did  not  cause  or 
materially  contribute  to  the  injury,  was  for  the  jury  to  determine 
under  the  evidence  and  a  proper  charge  bj-  the  court;  and  the  court 
by  its  charge  having  eliminated  this  issue  from  the  case,  we  think  a 
new  trial  should  be  granted.  Judgment  reversed. 

Note.  —  See,  accord,  Doolittle  v.  Shaw,  92  Iowa,  348. 


HARVEY  V.   EPES. 

12  Gratt.  (Va.)  153.     1855. 

Slaves  were  hired  to  be  worked  upon  that  portion  of  a  railroad 
Ijing  within  the  county  of  Amelia.  They  were  worked  upon  a  por- 
tion of  the  railroad  lying  within  the  county  of  Chesterfield.  While 
being  so  worked,  they  died. 

MoNCURE,  J.  The  court  seems  to  have  been  of  opinion  that  if  the 
slaves  were  hired  with  an  agreement  that  they  were  to  be  employed 
only  on  that  part  of  the  Richmond  and  Danville  railroad  which  runs 
through  the  countj'  of  Amelia,  and  if  the  hirers  in  violation  of  the 
agreement  carried  the  slaves  bc^'ond  the  limits  of  the  comity  of 


438  BRYANT    V.    WARDELL.  [cHAP.  L 

Amelia  into  the  county  of  Chesterfield,  and  there  worked  them  on 
said  road ;  then  that  such  violation  was  a  conversion  of  the  said  slaves 
to  the  use  of  the  hirers,  and  rendered  them  liable  for  the  value  of 
the  slaves  under  the  second  count  of  the  declaration  (which  is  a 
count  in  trover),  whether  the  death  of  the  slaves  was  occasioned  by 
such  violation  or  not.  I  will  now  proceed  to  enquire  as  to  the  cor- 
rectness of  this  opinion. 

I  am  of  opinion  that  in  the  case  of  a  bailment  upon  hire  for  a  cer- 
tain term  (whatever  may  be  the  law  in  regard  to  a  deposit,  a  mandate 
or  other  gratuitous  bailment,  or  any  bailment  during  the  mere  pleas- 
ure of  the  bailor,  as  to  which  it  is  uimecessary  to  express  any  opin- 
ion), the  use  of  the  property  by  the  hirer  during  the  term,  for  a  differ- 
ent purpose  or  in  a  different  manner  fi-om  that  which  was  intended 
by  the  parties,  will  not  amount  to  a  conversion  for  which  tro"\'er  will 
lie,  unless  the  destruction  of  the  propertj^  be  thereb}^  occasioned; 
or,  at  least,  unless  the  act  be  done  with  intent  to  convert  the  prop- 
erty, and  thus  to  destroy  or  defeat  the  interest  of  the  bailor  therein. 

I  think  the  court,  instead  of  that  instruction  and  the  instructions 
numbered  two  and  three,  moved  for  by  the  plaintiffs  in  error,  ought 
to  have  given  an  instruction  to  the  juiy  to  the  following  effect: 
"That  if  there  was  a  special  contract  between  the  plaintiff  and  the 
defendants,  that  the  slaves  which  are  the  subject  of  controversy 
were  to  be  employed  on  that  part  of  the  Richmond  and  Danville 
railroad  which  runs  through  the  county  of  Amelia  only;  and  if  the 
defendants  did  carry  them  beyond  the  limits  of  said  county  into  the 
county  of  Chesterfield,  and  there  employ  them  on  said  road;  such 
wrongful  act  was  not,  of  itself,  a  conversion  of  the  said  slaves  to  their 
use.  But  if  the  death  of  the  slaves  was  occasioned  by  the  said  wrong- 
ful act,  then  the  said  act,  in  connection  with  the  death  of  the  slaves, 
was  a  conversion  of  them  by  the  defendants  to  their  use,  and  made 
them  liable,  under  either  count  of  the  declaration,  for  the  value  of 
said  slaves:  And  if  such  death  occurred  while  the  said  wrongful  act, 
by  which  it  may  have  been  occasioned,  was  in  operation  and  force, 
the  burden  of  satisfying  the  jury  that  it  was  not  so  occasioned,  de- 
volves on  the  defendants." 

Note.  —  See  Carney  v.  Rease,  60  W.Va.  676,  in  which  case  the 
doctrine  laid  down  in  the  principal  case  is  approved. 


BRYANT  V.  WARDELL. 

2  Exch.  479.     1848. 

Trover  for  theatrical  dresses  and  other  property.    It  appeared 
that  certain  chattels  had  been  bailed  to  the  defendants,  who,  during 


SECT,  v.]  FROME    V.    DENNIS.  439 

the  term,  used  them  for  a  purpose  not  authorized  by  the  bail- 
ment. 

Pollock,  C.B.  We  are  clearly  of  opinion  that  trover  is  the  proper 
form  of  action  here,  notwithstanding  the  continuance  of  the  con- 
tract under  which  the  goods  had  been  bailed  to  the  defendants.  The 
case  of  Cooper  v.  Willomati,  1  C.  B.  672,  is  a  decisive  authority 
upon  this  point.  It  was  there  held,  that  a  bailee  of  goods  for  hire, 
by  selling  them,  determines  the  bailment;  and  the  bailor  may  main- 
tain trover  against  the  purchaser,  though  the  purchase  was  bona 
fide.  The  cases  on  the  subject  are  referred  to  there.  The  rule  is, 
that  where  there  has  been  a  misuser  of  the  thing  lent,  as  by  its  de- 
struction, or  otherwise,  there  is  an  end  of  the  bailment,  and  the  action 
for  trover  is  maintainable  for  the  conversion. 


LORD   PETRE  v.  HENEAGE. 

12  Mod.  519.     1699. 

Trover  by  the  plaintiff,  as  administrator  ciim  testamento  annexo 
of  the  late  Lord  Petre  against  the  wife  of  the  first  executrix,  for  a 
necklace  of  pearl. 

Holt,  C.J.  The  wearing  of  a  pearl  is  a  conversion. 

Note.  —  West  Jersey  Railroad  Co.  v.  Trenton  Car  Works  Co.,  32 
N.J.L.  517.  The  defendants  received  a  car  which  was  the  property 
of  the  plamtiff.  They  should  have  forwarded  it  as  freight.  "  Instead 
of  doing  so,  they  filled  it  with  their  owti  passengers.  This  was  a  con- 
version, at  the  option  of  the  plaintiffs.  They  continued  to  use  it  for 
a  couple  of  weeks  afterwards,  by  agreement  with  Dungan  [who  was 
not  authorized  by  the  plaintiff  to  make  such  agreement].  This  was 
a  conversion." 

Cf.  Fifield  V.  Maine  Central  Railroad  Co.,  62  Me.  77,  82.  A  bailee 
who  uses  the  chattel  after  the  bailor's  title  has  been  transferred,  but 
before  he  has  notice  of  the  transfer,  is  not  a  converter. 


FROME  V.  DENNIS. 

45  N.  J.  L.  515.     1883. 

Dixon,  J.  In  August,  1879,  the  plaintiff  left  his  plow  on  the  farm 
of  one  Cummins,  with  the  latter's  consent,  until  he,  the  plaintiff, 
should  come  and  take  it  away.  In  April,  1880,  the  farm  passed  into 
the  possession  of  one  Hil^lcr,  the  plow  still  being  there.  In  June,  1880, 
the  defendant,  a  neighboring  fanner,  borrowed  the  plow  of  Hibler 


440  FROME   V.    DENNIS.  [CHAP.  1. 

to  plow  a  field,  supposing  the  plow  to  be  Hibler's,  and  having  used  it, 
in  three  or  four  days  returned  it  to  Hibler,  still  supposing  it  to  be  his 
property.  In  the  summer  of  1881  the  plaintiff  informed  the  defend- 
ant that  it  was  his  plow  which  he  had  used,  and  demanded  of  him 
pay  for  the  use  and  the  return  of  the  plow  or  its  value,  and  the  de- 
fendant not  complying,  the  plaintiff  brought  an  action  of  trover  for 
the  plow.  The  justice  before  whom  the  suit  was  instituted,  and  the 
Common  Pleas  on  appeal,  each  gave  judgment  for  the  plaintiff  for 
the  value  of  the  plow.  The  judgment  of  the  Pleas  is  now  before  us 
on  certiorari,  and  the  defendant  below  contends  that  the  foregoing 
facts  proved  on  the  trial  did  not  justify  the  judgment. 

In  this  contention  we  agree  with  the  defendant. 

The  conduct  of  the  defendant  in  the  case  at  bar  did  not  amount 
to  a  conversion  of  the  plow.  He  received  it  for  a  temporary  use  only, 
and  without  any  claim  of  right  or  dominion  over  it,  but  having  a  mere 
license  from  the  possessor,  revocable  at  once  by  either  the  possessor 
or  the  true  owner.  He  surrendered  it  to  the  possessor  from  whom  he 
had  received  it,  without  any  intention  of  enlarging  or  changing  his 
title,  without  any  reference  to  anybody's  title,  and  doubtless  would 
have  as  readily  surrendered  to  the  plaintiff  upon  his  ownership  being 
shown.  Neither  in  the  use  nor  in  the  surrender  by  the  defendant  does 
there  appear  any  repudiation  of  the  owner's  right,  or  any  exercise 
of  dominion  inconsistent  with  such  right.  His  acts  may  have  con- 
stituted a  trespass,  but  not  a  conversion. 

This  being  so,  his  subsequent  failure  to  deliver  the  plow  to  the 
plaintiff  on  demand  was  not  evidence  of  a  conversion,  for  the  reason 
that  delivery  was  then  impossible  to  him.  He  did  not  refuse  to  deliver, 
but  could  not.  Ross  v.  Johnson,  5  Burr.  2S2o;  Salt  Springs  Bank  v. 
Wheeler,  48  N.Y.  492;  Magnin  v.  Dinsmore,  70  N.Y.  410. 


i 


SECT.  VI.]  HYDE    V.    NOBLE.  441 


SECTION  6. 
POSSESSING  THE  CHATTEL  UNDER  A  CLAIIM  OF  RIGHT. 


HURST  V.  GWENNAP. 

2  Starkie,  306.     1817, 

This  was  an  action  of  trover,  brought  by  the  plaintiffs  as  the 
assignees  of  Foster,  a  banlcrupt,  to  recover  the  value  of  certain  books. 

Foster  was  a  bookseller,  and  on  the  14th  of  June  the  defendant 
called  at  his  shop  and  purchased  two  books  of  the  value  of  35L  and 
25^.,  on  sale  and  return.  An  act  of  bankruptcy  had  then  been  com- 
mitted, but  it  did  not  appear  that  the  defendant  had  any  Icnowledge 
of  the  bankruptcy.  Four  days  after  the  sale  a  commission  of  bank- 
rupt was  sued  out  against  Foster. 

Lord  Ellenborough  was  of  opinion  that  the  aetion  was  main- 
tainable, since  the  very  act  of  taking  the  goods  from  one  who  had 
no  right  to  dispose  of  them,  was  in  itself  a  conversion. 

Verdict  Jor  the  'plaintiff. 


HYDE  V.  NOBLK 

13  N.H.  494.     1843, 

Trover,  for  certain  boards,  piank,  and  shingles,  alleged  to  have 
been  converted  by  the  defendants,  January  2,  1840. 

It  appeared  in  evidence,  that  in  November,  1839,  the  plaintiff  and 
certain  other  persons  were  the  owners  of  a  quantity  of  lumber,  at 
Hallowell  and  Gardiner,  in  Maine.  The  lumber  was  manufactured 
at  mills  there,  which  were  hired  by  the  plaintiff,  for  the  benefit  of  all 
the  owners  of  the  lumber,  and  the  plaintiff  hax.1  the  possession  of  the 
mills  and  lumber,  for  himself,  and  as  agent  for  the  other  owners,  and 
had  the  complete  control  of  it. 

In  that  month  the  plaintiff  contracted  with  William  S.  Kenniston, 
master  of  the  schooner  Prospect,  to  take  a  cargo  of  the  lumber  from 
Hallowell  and  Gardiner  to  WejTnouth,  in  Massachusetts,  and  caused 
the  same  to  be  put  on  board  the  vessel. 

The  vessel  lay  some  days  at  the  mouth  of  the  Kemiebeck  River; 
and  having  encountered  a  severe  storm  on  her  passage,  which  caused 
her  to  leak  badly,  put  into  the  harbor  of  Portsmouth,  during  the 
storm,  on  the  15th  of  December. 


442  HYDE    V.    NOBLE.  [cHAP.  I. 

It  was  necessary  to  take  out  some  of  the  lumber,  in  order  to  lighten 
the  vessel,  but  no  repairs  were  made  except  on  one  of  the  sails,  and 
these  were  made  from  materials  on  board. 

While  the  vessel  lay  at  Portsmouth,  the  defendants,  who  are  part- 
ners, purchased  some  of  the  lumber  of  Kenniston, 

Parker,  C.J.  The  plaintiff  had  a  sufficient  property  in  the  lumber 
to  enable  him  to  maintain  trover,  if  the  defendants  are  liable.  He  was 
part  owner  of  the  lumber,  and  although  others  were  interested  in  it, 
yet  it  appears  that  he  hired  the  mills  at  which  it  was  manufactured, 
had  possession  of  them  and  of  the  lumber,  and  had  the  com-plete 
control  of  it.  It  is  evident  that  he  might  have  sold  it,  being  account- 
able to  those  interested  for  the  proceeds,  and  it  seems  that  he  had 
shipped  it  for  that  purpose.  He  had,  then,  a  general  property  in  part, 
and  a  special  property  in  the  residue,  and  the  latter  alone  is  sufficient 
for  the  purpose  of  this  action.  2  N.H.  Rep.  320,  Jones  v.  Sinclair; 
4  Bing.  489,  Knight  v.  Legh.  The  sale  by  Kenniston  terminated  the 
bailment,  and  the  plaintiff  had  the  right  of  possession.  6  N.H.  Rep. 
14,  Sanborn  v.  Caiman;  8  N.H.  Rep.  325,  Sargent  v.  Gile. 

The  purchase  by  the  defendants,  taking  possession  as  they  appear 
to  have  done,  and  holding  it  as  their  own  property,  was  a  conversion. 
They  received  the  possession  from  one  who  had  no  authority  to 
deliver  it  to  them,  under  a  sale  which  purported  to  vest  the  property 
in  them;  and  they,  by  the  purchase,  undertook  to  control  it  as  their 
own  property.  This  was  an  assumption  of  power  over  it,  inconsistent 
with  the  rights  of  the  plaintiff.  Purchasing  the  property  from  one 
who  had  no  right  to  sell,  and  holding  it  to  their  o-^m  use,  is  a  direct  act 
of  conversion,  without  any  demand  and  refusal.  Their  possession 
was  unlawful  in  its  inception,  by  reason  of  the  want  of  authority  in 
Kemiiston  to  make  the  transfer.  It  is  only  where  a  party  obtains  the 
possession  lawfully,  that  it  is  necessary  to  show  a  demand  and  refusal. 

Note.  —  See,  accord,  McNeill  y.  Arnold,  17  Ark.  154,  174;  Robin- 
son V.  McDonald,  2  Ga.  116;  Chandler  v.  Ferguson,  2  Bush  (Ky.)  163; 
Freeman  v.  Underwood,  66  Me.  229;  Harker  v.  Dement,  9  Gill  (Md.) 
7,  16;  Riley  v.  Boston  Water  Power  Company,  11  Gush.  (Mass.)  11; 
Sunlin  v.  Skutt,  133  Mich.  208;  Heberling  v.  Jaggar,  47  Minn.  70; 
Johnson  v.  White,  21  Miss.  584;  Surles  v.  Sweeney,  11  Oreg.  21; 
Carey  v.  Bright,  58  Pa.  70,  83;  Courtis  v.  Cane,  32  Vt.  232;  Eldred  v. 
Oconto  Co.,  33  Wis.  133,  140. 

See,  contra,  Gillet  v.  Roberts,  57  N.Y.  28,  in  which  the  court  said 
(p.  30) :  "  It  is  well  settled  that  a  bona  fide  purchaser  of  personal  prop- 
erty at  a  sheriff's  sale,  or  even  from  a  wrong-doer,  is  not  liable  for  a 
conversion  without  a  demand  and  refusal";  Parker  v.  Middlebrook, 
24  Conn.  207,  210;  Wood  v.  Cohen,  6  Ind.  455;  Burckhalter  v.  Mitchell, 
27  S.C.  240,  243. 

In  Dean  v.  Cushman,  95  Me.  454,  the  court  said  (p.  457) :  "  We  hold 


i 


SECT.  VI.]  ADAMS    V.    MIZELL.  443 

that  one  who  purchases  in  good  faith,  without  actual  notice,  mortgaged 
chattels  of  the  mortgagor  in  possession,  if  he  has  merely  received  the 
goods  into  his  own  possession,  and  has  exercised  no  other  dominion 
or  control  over  them  to  the  exclusion  of  the  mortgagee  or  in  defiance 
of  his  rights,  is  not  liable  for  a  conversion,  without  demand  or  refusal." 


ADAMS  V.   MIZELL. 

11  Ga.  106.     1852. 

By  the  Court.  —  Nisbet,  J.,  delivering  the  opinion. 

According  to  the  evidence,  the  defendant  received  the  negroes  as  a 
loan  for  an  indefinite  term.  After  his  marriage  with  the  mother  of  the 
plaintiffs,  the  woman,  Rose,  was  sent  home  with  him  by  his  father- 
in-law,  under  whose  will  the  plaintiffs  claim,  "to  be  well  treated 
until  he  called  for  her,"  he  saying  farther,  "  that  he  would  not  give  her 
to  them  to  spend,  but  to  keep  until  he  called  for  her."  The  evidence 
farther  is,  that  the  defendant  had  been  in  possession  of  Rose  and  her 
descendants  ever  since;  always  claimed  them  as  his  own,  and  worked 
and  treated  them  as  owners  of  slaves  usually  do.  It  is  farther  in  evi- 
dence, that  one  of  the  witnesses  had  a  conversation  with  the  defend- 
ant before  this  suit  was  instituted,  about  a  threatened  suit  by  one  of 
the  plaintiffs,  in  which  defendant  stated,  that  "he  knew  that  Allen 
Dorman  had  given  the  negroes  to  his  (defendant's)  children  in  his 
will,  but  that  they  were  his,  and  he  should  hold  them  in  spite  of 
them."  Upon  this  evidence,  the  court  non-suited  the  plaintiffs, 
because  there  was  no  proof  of  conversion,  and  they  have  excepted. 
The  user  and  control  of  the  slaves  alone  do  not  amount  to  conversion, 
because  consistent  with  the  lender's  title,  according  to  the  right  of 
possession,  which  the  defendant  acquired  by  the  loan.  There  was 
nothing  in  them  tortious.  But  the  assertion  of  a  title  to  the  property, 
made  after  the  death  of  the  lender,  with  knowledge  of  the  plaintiffs' 
title,  and  made  in  direct  reference  to  their  title,  and  a  declaration 
that  he  would  hold  it,  in  spite  of  them,  in  addition  to  the  use  and 
control,  is  proof  of  conversion.  The  defendant  negatived  both  the 
right  of  property  and  right  of  possession  of  the  plaintiffs ;  repudiated 
the  character  in  which  he  acquired  the  possession,  and  appropriated 
the  property.  These  things  constitute  conversion,  and  the  evidence 
proves  them.  The  case,  in  our  opinion,  ought  to  have  gone  to  the 
jury.  Liptrot  v.  Holmes,  1  Kelly,  391,  '2. 

Let  the  judgment  be  reversed. 


444  huddleston's  adme.  v.  currin.  [chap.  i. 

HUDDLESTON'S  ADMR.   v.   CURRIN. 

4  Humph.  (Tenn.)  237.     1843. 

This  action  of  trover  was  brought  in  the  Circuit  Court  of  William- 
son,  by  Huddleston^  a  constable,  against  Currin,  a  trustee.  Huddle-  ■ 

ston,  a  constable,  le\ied  on  a  hoi-se,  the  property  of  one  Bateman,  " 

by  ji.  fa.  and  the  horse  was  sent  off  to  Williamson  County,  and  was 
there  levied  on  by  fi.  fa.  at  the  instance  of  other  creditors  of  Bateman, 
sold,  and  pm-chased  by  Charter.  Charter  conveyed  the  horse  by  deed 
of  trust  to  Currin,  as  trustee  for  the  benefit  of  his  creditors.  This 
deed  recited  that  he  "bargained,  sold  and  delivered"  the  horee  to 
Currin  in  trust  for  the  benefit  of  his  creditors.  It  authorized  the 
trustee  to  sell  the  horse  after  the  exiDiration  of  twelve  months,  if  the 
debts  were  not  paid,  but  was  silent  as  to  the  possession  in  the  mean- 
time. The  horse,  by  verbal  agreement  of  the  parties,  did  not  go  into 
the  possession  of  Curiin,  but  remained  with  Charter.  Huddleston 
demanded  a  surrender  of  the  title  of  the  hoi-se  of  Currin,  which  Currin 
refused.  The  case  was  submitted  on  plea  of  not  guilty,  to  a  jury, 
Maney,  Judge,  presiding. 

He  charged  the  jury',  that  a  constable  by  levy  acquired  a  right  to 
personal  property  which  would  authorize  an  action;  that  the  deed 
from  Charter  to  Currin  was  not  such  as  necessarily  made  Cunin 
liable  to  this  action  of  the  plaintiff;  that  the  possession  of  the  goods 
by  Charter  for  twelve  months  previous  to  the  day  on  which  Currin 
was  authorized  to  sell  was  quite  as  consistent  with  the  deed  as  the 
possession  of  Currin ;  and  that  if  it  was  understood  between  them  that 
Charter  should  retain  ix)ssession  for  the  twelve  months,  and  he  did 
retain  the  possession,  the  bare  refusal  of  Cm-rin  within  that  time  to 
relinquish  his  claim  to  the  property  under  the  deed  of  trust,  would  not 
be  a  conversion  upon  which  the  action  of  trover  could  be  sustained. 

The  jury  rendered  a  verdict  in  favor  of  the  defendant,  from  which 
the  plaintiff's  administrator  (the  plaintiff  having  died  and  the  suit 
being  renewed  by  his  administrator)  appealed. 

Reese,  J.,  delivered  the  opinion  of  the  court. 

This  is  an  action  of  trover  to  recover  the  value  of  a  horse,  alleged 
to  have  been  converted  by  defendant.  The  horse  was  not,  and  had 
never  been  in  the  actual  possession  of  defendant:  he  was  included 
among  other  property  in  a  deed  of  trust,  made  by  one  Charter  to 
defendant  as  trustee,  to  secure  the  debts  of  third  persons,  and  the 
trustee  was  empowered,  after  the  lapse  of  twelve  months,  to  sell  the 
property.  This  suit  was  brought  within  the  twelve  months;  and  the 
only  e\ddence  of  conversion  is,  that  Currin  being  asked  by  plaintiff 
if  the  horse  was  in  the  deed  of  trust,  said  he  did  not  know;  and  being 
inquired  of,  whether,  if  so  included,  he  would  not  surrender  all  claim 
to  the  horse,  he  replied  that  he  would  not.  The  com-t  charged  the 


SECT.  VI.]  SPACKMAN    V.    FOSTER.  445 

jury,  that  during  the  twelve  months  previous  to  the  time  limited  in 
the  deed  of  trust  for  the  sale  of  the  property,  the  possession  of  Char- 
ter was  consistent  with  the  title  of  Currin;  and  if  by  the  understand- 
ing of  the  parties,  the  property  during  the  twelve  months  was  to 
remain  in  the  possession  of  Charter,  and  did  so  remain,  then  the 
mere  refusal  of  Currin,  the  trustee,  to  surrender  his  claim  by  virtue 
of  the  deed  of  trust,  would  not  amount  to  an  act  of  conversion  in 
him. 

We  are  unable  to  perceive  any  error  in  this  charge  of  the  court.  If 
the  deed  of  trust  be  silent  on  the  subject  of  possession  —  if  the  trus- 
tee has  no  present  power  to  sell,  and  if  the  understanding  or  agree- 
ment were  that  the  grantor  should  retain  possession  of  the  property 
till  the  sale  —  the  trustee  does  no  wrongful  act,  is  guilty  of  no  con- 
version, when  he  simply  refuses  to  relinquish  the  title  to  the  property. 

Let  the  judgment  be  affirmed. 

Note.  —  Forth  v.  Pursley,  82  111.  152.  Purchasing  property  at  a 
tax  sale,  but  not  taking  possession,  is  not  a  conversion  of  such 
property. 

Burnside  v.  TwitcheU,  43  N.H.  390.  Taking,  and  foreclosing,  a 
mortgage  on  property,  without  taking  possession  thereof,  is  not  a 
conversion  of  such  property. 

Irish  V.  Cloyes,  8  Vt.  30.  The  mere  assertion  of  ownership  of 
property,  without  more,  is  not  a  conversion  of  such  property. 


SPACKMAN  V.  FOSTER. 

L.  R.  11  Q.  B.  D.  99.     1883. 

This  was  an  action  tried  at  the  Cambridge  Assizes  on  the  1st  of 
February,  1883,  to  recover  certain  title  deeds. 

At  the  trial  it  appeared  that  the  plaintiffs  were  jointly  entitled  to 
certain  land  at  Cottenham,  in  the  county  of  Cambridge,  the  title 
deeds  of  which  were  in  their  possession  up  to  October,  1859.  At 
that  date  John  Spackman,  a  son  of  one  of  the  plaintiffs,  deposited 
the  deeds  without  their  knowledge  with  the  defendant  to  secure  an 
advance  of  1001. 

John  Spackman  died  in  1874,  having  up  to  that  time  paid  the  in- 
terest on  the  mortgage  money,  which  was  paid  after  his  death  by  his 
widow.  The  plaintiffs  were  not  aware  that  the  title  deeds  had  been 
taken  from  them  until  April,  1882,  when,  on  the  land  being  adver- 
tised for  sale,  the  defendant  gave  notice  that  he  held  the  title  deeds 
and  claimed  to  hold  them  as  security.  The  plaintiffs  thereupon  de- 
manded them,  and,  on  the  refusal  of  the  defendant  to  give  them  up, 
this  action  was  brought.  The  defendant  pleaded  the  Statute  of  Limi- 


446  SPACKMAN   V.    FOSTER.  [CHAP.  I. 

tations,  but  the  learned  judge  at  the  trial  ruled  that  the  deposit  by 
John  Spackman  in  1859  gave  no  title  to  the  defendant  against  the 
plaintiffs,  and  that  the  Statute  of  Limitations  did  not  then  begin  to 
run  and  afforded  no  defence  to  the  action.  A  verdict  was  accordingly 
directed  for  the  plaintiffs.  A  rule  nisi  for  a  new  trial  was  subsequently 
obtained  on  the  ground  of  misdirection. 

Grove,  J.  This  was  an  action  brought  by  the  two  plaintiffs,  who 
were  owners  of  certain  real  property,  to  recover  possession  of  their 
title  deeds.  It  appears  that  for  a  long  time  they  had  no  occasion  to 
refer  to  the  title  deeds,  but  that  when  inquiry  was  made  for  them 
they  were  found  to  be  in  the  possession  of  the  defendant,  of  whom 
they  were  demanded,  but  who  refused  to  give  them  up.  An  action 
was  commenced  to  which  the  defendant  pleaded  the  Statute  of  Limi- 
tations. The  judge  at  the  trial  decided  in  favour  of  the  plaintiffs 
that  the  statute  had  not  run  against  them,  but  that  they  were  en- 
titled to  the  deeds,  and  they  accordingly  obtained  judgment.  After- 
wards a  rule  to  set  aside  that  judgment  was  obtained  on  the  ground 
that  the  claim  was  barred  by  the  statute.  Several  points  were  raised 
in  argument,  but  the  only  one  material  to  our  decision  is  whether 
the  plaintiffs  could  have  brought  an  action  for  the  detention  of  the 
deeds  without  previously  having  demanded  them.  The  defendant 
when  he  received  these  deeds  had  no  knowledge  that  the  person  who 
pledged  them  had  no  title  to  them.  He  kept  them  as  depositee  or 
bailee  bound  to  return  them  on  pajinent  of  the  money  he  had  ad- 
vanced. He  held  them  against  the  person  who  had  deposited  them, 
but  not  against  the  real  owner,  and  7ion  constat  that  he  would  not 
have  given  them  up  if  the  real  owner  had  demanded  them.  This  does 
not  seem  to  me  to  be  conversion.  There  was  no  injury  to  the  prop- 
erty which  would  render  it  impossible  to  return  it,  nor  claim  of  title 
to  it,  nor  claim  to  hold  it  against  the  owTier.  The  defendant  was 
somewhat  in  the  position  of  a  finder  of  lost  property,  and  the  trover 
or  finding  is  innocent  unless  it  is  followed  by  conversion.  The  case 
most  relied  on  for  the  defendant  was  McCombie  v.  Davies,  6  East, 
538.  The  headnote  of  that  case  certainly  appears  to  support  the 
defendant's  argument,  but  there  is  the  great  distinction  that  there 
there  was  a  demand  and  refusal.  Lord  Ellenborough  saj's  that 
assuming  to  oneself  the  property  and  right  of  disposing  of  another 
man's  goods  is  a  conversion,  but  that  was  not  the  case  here,  for  all 
that  the  defendant  assumed  was  the  right  of  safe  keeping  against  the 
person  depositing  till  the  amount  advanced  should  be  repaid,  but 
he  did  not  in  any  other  respect  assume  to  himself  the  right  of  dispos- 
ing of  another  man's  goods  which  Lord  Ellenborough  said  would 
amount  to  conversion.  The  other  judges  assented,  but  the  ground 
of  their  opinion  is  added,  "that  when  the  defendant  was  afterwards 
informed  of  the  plaintiff's  rights  and  the  tobacco  was  demanded  of 
him  he  refused  to  deliver  it."  On  the  whole,  I  think  that  there  was 


I 


I 


SECT.  VI..'  SPACEMAN   V.    FOSTER.  447 

no  conversion,  and  consequently  no  right  of  action  against  which  the 
statute  would  run  till  the  demand  and  refusal  to  give  up  the  deeds. 
Consequently  the  ruling  of  the  learned  judge  at  the  trial  was  right, 
and  this  rule  must  be  discharged. 
Stephen  and  Day,  JJ.,  concurred. 

Rule  discharged. 

Note.  —  See,  accord,  Union  Bank  v.  Mersey  Docks,  [1899]  2 
Q.  B.  205,  216;  Leonard  v.  Tidd,  3  Met.  (Mass.)  6,  supra;  Leuthold  v. 
Fairchild,  35  Minn.  99. 

See,  contra,  McCombie  v.  Davies,  6  East,  538;  Hotchkiss  v.  Hunt, 
49  Me.  213,  224.  Taking  possession  of  a  chattel  by  virtue  of  a  mort- 
gage thereon  was  held  to  be  a  conversion  in  Stanley  v.  Gaylord,  1  Cush. 
(Mass.)  536. 


448  GORDON    V.    HARPER.  \CHAP.  U. 


CHAPTER  II. 

RIGHT   OF  A  BAILOR  TO  SUE    FOR  A  CONVERSION 
BY  A  STRANGER. 


I 


GORDON   V.   HARPER.    . 

7  T.  R.  9.     1796. 

In  trover  for  certain  goods,  being  household  furniture,  a  verdict 
was  found  for  the  plaintiff,  subject  to  the  opinion  of  this  court  on  the 
following  case:  —  On  1st  October,  1795,  and  from  thence  until  the 
seizing  of  the  goods  by  the  defendant  as  after  mentioned,  Mr.  Bis- 
coe  was  in  possession  of  a  mansion-house  at  Shoreham  and  of  the 
goods  in  question,  being  the  furniture  of  the  said  house,  as  tenant 
of  the  house  and  furniture  to  the  plaintiff,  under  an  agreement  made 
between  the  plaintiff  and  Mr.  Biscoe,  for  a  term  which  at  the  trial 
of  this  action  was  not  expired.  The  goods  in  question  were  on  the 
24th  of  October  taken  in  execution  by  the  defendant,  then  sheriff  of 
the  county  of  Kent,  by  virtue  of  a  writ  of  testatum  fieri  facias  issued 
on  a  judgment  at  the  suit  of  J.  Broomhead  and  others,  executors  of 
J.  Broomhead,  deceased,  against  one  Borrett,  to  whom  the  goods  in 
question  had  belonged,  but  which  goods,  previous  to  the  agreement 
between  the  plaintiff  and  ]\Ir.  Biscoe,  had  been  sold  by  Borrett  to 
the  plaintiff.  The  defendant  after  the  seizure  sold  the  goods.  The 
question  is,  whether  the  plaintiff  is  entitled  to  recover  in  an  action 
of  trover. 

Lord  Ken  YON,  Ch.J.  The  only  point  for  the  consideration  of  the 
court  in  the  case  of  Ward  v.  Macauley  was,  whether  in  a  case  like  the 
present  the  landlord  could  maintain  an  action  of  trespass  against  the 
sheriff  for  seizing  goods,  let  with  a  house,  under  an  execution  against 
the  tenant;  and  it  was  properly  decided  that  no  such  action  could 
be  maintained.  What  was  said  further  by  me  in  that  case,  that 
trover  was  the  proper  remedy,  was  an  extrajudicial  opinion,  to 
which  upon  further  consideration  I  cannot  subscribe.  The  true  ques- 
tion is,  whether  when  a  person  has  leased  goods  in  a  house  to  another 
for  a  certain  time,  whereby  he  parts  with  the  right  of  possession  dur- 
ing the  term  to  the  tenant,  and  has  only  a  reversionary  interest,  he 
can  notwithstanding  recover  the  value  of  the  whole  property  pending 
the  existence  of  the  term  in  an  action  of  trover.  The  very  statement 
of  the  proposition  affords  an  answer  to  it.  If,  instead  of  household 


CHAP.  II.]  MANDERS    V.    WILLIAMS.  449 

goods,  the  goods  here  taken  had  been  machines  used  in  manufacture 
which  had  been  leased  to  a  tenant,  no  doubt  could  have  been  made 
but  that  the  sheriff  might  have  seized  them  under  an  execution 
against  the  tenant,  and  the  creditor  would  have  been  entitled  to  the 
beneficial  use  of  the  property  during  the  term:  the  difference  of  the 
goods  then  cannot  vary  the  law.  The  cases  which  have  been  put 
at  the  bar  do  not  appty:  the  one  on  which  the  greatest  stress  was 
laid  was  that  of  a  tenant  for  years  of  land  whereon  timber  is  cut  down, 
in  which  case  it  was  truly  said,  that  the  owner  of  the  inheritance 
might  maintain  trover  for  such  timber,  notwithstandmg  the  lease. 
But  it  must  be  remembered  that  the  only  right  of  the  tenant  is  to 
the  shade  of  the  tree  when  growing,  and  by  the  very  act  of  felling  it 
his  right  is  absolutely  determined ;  and  even  then  the  property  does 
not  vest  in  his  iimnediate  landlord;  for  if  he  has  only  an  estate  for 
life,  it  will  go  over  to  the  owner  of  the  inheritance.  Here,  however, 
the  tenant's  right  of  possession  during  the  term  camiot  be  devested 
by  any  wrongful  act,  nor  can  it  thereby  be  revested  in  the  landlord. 
I  forbear  to  deliver  any  opinion  as  to  what  remedy  the  landlord  has 
in  this  case,  not  being  at  present  called  upon  so  to  do :  but  it  is  clear 
that  he  cannot  maintain  trover. 

Note.  —  See,  accord,  Bacon  v.  George,  206  Mass.  566,  570. 

The  bailee  may  have  participated  in  the  wi'ongf  ul  act,  and  thereby 
forfeited  his  bailment.  Then  the  owner  may  sue  the  stranger  as  well 
as  the  bailee.  See  Mulliner  v.  Florence,  L.  R.  3  Q.  B.  D.  484,  supra; 
and  McCombie  v.  Denies,  7  East,  5,  supra. 


MANDERS  V.  WILLIAMS. 

4  Exch.  339.      1849. 

Trover  for  certain  porter  casks.  —  Pleas,  not  guilty  and  not 
possessed;  upon  which  issues  were  joined. 

At  the  trial,  before  Erle,  J.,  at  the  Carmarthen  Spring  Assizes, 
1849,  it  appeared  that  the  plaintiffs,  who  were  porter  merchants  in 
Dublin,  were  accustomed  to  supply  one  John  David,  of  Laugharne 
in  Wales,  with  porter.  The  course  of  dealing  was  to  consign  the  porter 
to  David  twice  a  year  in  half-barrel  casks,  with  an  invoice,  charging 
nothing  for  the  casks,  which  were  returned  by  him  to  the  ])laintiffs 
when  empty.  In  April,  1848,  the  plaintiffs  sent  to  David  a  quantity 
of  porter,  with  a  bill  of  lading  in  the  usual  form,  and  the  following 
invoice,  dated  the  13th  of  April,  1848:  — 

"Invoice  of  butts,  hhds.,  brls.,  440  half-brls.  por- 

ter (Irish  measure)  shipped  by  order  and  for  account,  risk,  and  to 
address  of  John  David,  Laugharne.  The  empty  casks  to  be  returned 


450  MANDERS    V.    WILLIAMS.  [cpAP.  U. 

to  Dublin  at  his  expense  and  risk  within  six  months  from  date  hereof, 
or  paid  for  at  invoice  price,  at  the  option  of  the  shippers." 

The  invoice  then  stated  the  price  of  the  porter;  and  there  was  this 
note  at  the  foot:  —  "Value  of  the  barrels  7s.  &d.  each." 

In  June,  1848,  the  plaintiffs  consigned  sixty  more  half-barrels  of 
porter  to  David,  with  a  similar  invoice,  dated  the  24th  of  June.  In 
August,  1848,  the  defendant,  who  was  sheriff  of  Carmarthenshire, 
seized  and  sold,  under  a  fieri  facias  against  David,  300  of  these  casks, 
which  were  lying  empty  in  his  cellar.  The  present  action  was  com- 
menced on  the  26th  of  the  following  October,  and  more  than  six 
months  after  the  date  of  the  first  invoice,  but  less  than  six  months 
after  the  date  of  the  second.  The  learned  judge  was  of  opinion  that 
under  this  contract  the  plaintiffs  had  not  a  sufficient  possession  to 
maintain  trover,  and  he  directed  a  verdict  for  the  defendant  on  the 
plea  of  not  possessed,  reserving  leave  for  the  plaintiffs  to  move  to 
enter  a  verdict  for  them  for  1121.  10.s.,  being  the  value  of  the  300 
casks  at  7s.  Qd.  each,  if  the  court  should  be  of  opinion  that  they  had 
sufficient  possession  to  enable  them  to  maintain  the  action. 

Parke,  B.  I  am  of  opinion  that  the  rule  ought  to  be  absolute. 
Gordon  v.  Harper,  which  must  now  be  considered  as  settled  law, 
shews,  that  if  a  person  has  an  interest  in  goods  for  a  certain  time,  by 
agreement  with  the  owner,  the  latter,  during  the  time  that  he  is  not 
in  possession,  cannot  maintain  trover  against  a  wrongdoer  who  takes 
the  goods.  That  case  might,  with  propriety,  have  been  differently 
decided  in  the  first  instance;  but  it  has  been  followed  by  others,  and 
the  Court  of  Common  Pleas  somewhat  extended  the  rule  in  Bradley 
V.  Copley.  There  it  was  held,  that,  where  a  person  in  possession  of 
goods  had  an  uncertain  interest  determinable  by  the  OTVTier,  until 
that  event  happened,  the  owner  could  not  maintain  trover,  although, 
according  to  a  passage  in  Sheppard's  Touchstone,  p.  272,  a  contract 
of  that  description  with  respect  to  real  estate  would  not  prevent  the 
owner  from  recovering  in  ejectment.  The  question  is,  in  what  con- 
dition was  David  under  this  contract;  had  he  a  certain  interest  at 
the  time  of  the  sale,  or  an  uncertain  interest  determinable  at  the 
option  of  the  plaintiffs,  so  as  to  bring  the  case  within  the  principle  of 
Bradley  v.  Copley  f  That  depends  upon  the  terms  of  the  invoice, 
which  gave  him  some  right  to  the  casks.  The  contract  must  be  con- 
strued with  reference  to  the  course  of  trading  between  the  parties  — 
the  vendor  in  Dublin  selling  porter  to  a  person  in  Wales.  The  object 
was,  to  put  the  vendee  in  possession  of  the  porter,  and  he  was  to 
have  the  casks  for  keeping  the  porter,  until  he  had  an  opportunity 
of  disposing  of  it.  Then  what  was  his  situation  as  soon  as  the  porter 
was  emptied  from  the  casks?  Was  he  more  than  a  mere  bailee  during 
pleasure,  the  plaintiffs  having  a  right  to  say,  "You  have  no  longer 
any  claim  to  the  possession  of  the  casks :  that  was  determined  when 
they  were  emptied,  and  we  insist  upon  their  being  delivered  to  us"? 


CHAP.  II.]  AilES    V.    PALMER.  451 

That  being  so,  the  plaintiffs  are  entitled  to  maintain  trover  against 
a  stranger  who  seizes  the  casks,  and  the  sheriff  is  in  that  position. 
The  true  construction  of  the  contract  is  to  give  David  an  interest 
only  until  the  casks  were  empty.  I  agree  with  Mr.  Davison,  that  in 
this  contract  every  stipulation  is  for  the  benefit  of  the  vendors,  not 
the  vendee.  The  latter  is  to  incur  all  risk;  he  is  under  the  obligation 
of  sending  the  empty  casks  to  Dublin  at  his  owti  expense,  and  before 
the  end  of  six  months  from  the  date  of  the  contract ;  if  not,  there  is 
an  option  for  the  benefit  of  the  vendors,  of  calling  on  him  to  purchase 
the  casks  at  a  fixed  price.  Those  stipulations  shew,  that  the  interest 
of  the  vendee  was  never  meant  to  extend  beyond  the  right  to  keep 
the  casks  until  the  porter  was  consumed.  Possibly,  he  might  within 
the  six  months  have  transferred  the  porter  in  the  casks  to  a  sub- 
vendee,  but,  as  soon  as  the  casks  were  emptied,  the  right  to  them  re- 
verted to  the  vendors.  According  to  the  true  construction  of  this 
contract,  I  am  satisfied  that  it  was  never  intended  that  David  should 
have  the  casks  for  any  other  purpose  than  keeping  the  porter.  In- 
deed, I  do  not  see  what  advantage  there  could  be  in  his  right  of  pos- 
session continuing  after  the  casks  were  empty;  for,  during  the  resi- 
due of  the  six  months,  he  could  neither  let  them  to  any  one  else  nor 
make  any  further  use  of  them  himself,  without  being  a  wrongdoer, 
and  at  the  end  of  the  six  months  he  was  bound  to  return  them.  So 
soon  as  the  casks  were  empt}',  the  right  of  property  and  the  right  of 
possession  reverted  to  the  plaintiffs,  and  David  was  in  the  situation 
of  a  mere  bailee  during  pleasure.  No  proposition  can  be  more  clear, 
than  that  either  the  bailor  or  the  bailee  of  a  chattel  may  maintain 
an  action  in  respect  of  it  against  a  wrongdoer;  the  latter  by  virtue 
of  his  possession,  the  former  by  reason  of  his  property.  This  is  laid 
down  in  2  Roll.  Abr.,  p.  551,  pi.  22,  30,  Com.  dig.  ''Trespass"  (B.  4), 
and  in  other  authorities.  The  verdict  must  therefore  be  entered  for 
the  plaintiffs  for  the  price  of  the  casks. 
Alderson,  B.,  and  Platt,  B.,  concurred. 

Rule  absolute. 


AMES  V.   PALMER. 

42  Me.  197.     185G. 

This  was  an  action  of  trover  for  a  cask  and  twenty  gallons  of  rum, 
taken  from  on  board  a  vessel.  Plea,  general  issue  and  a  justification. 

The  defendants,  to  justify  the  taking,  offered  a  complaint  made 
by  said  Palmer,  defendant,  and  others,  and  a  warrant  and  judgment 
of  Woodbury  Davis,  a  justice  of  the  peace,  which  were  objected  to. 

Defendants  contended  that  plaintiff  was  bound  to  show  that  the 
freight  on  the  property  from  Boston,  due  to  the  owners  of  schooner 


452  AJMES    V.    PALMER.  [cHAP.  II. 

Comet,  which  brought  it,  had  been  paid,  and  the  lien  on  it  dis- 
charged. 

Plaintiff  asked  the  court  to  instruct  the  jury  that  "where  goods  are 
wrongfully  taken  from  a  bailee,  that  it  is  not  necessary,  in  order 
for  the  owner  to  maintain  trover  for  their  value  against  the  wrong- 
doer, that  said  owner  should  tender  or  pay  to  the  bailee  any  freight 
for  which  said  bailee  might  have  a  lien  on  the  goods;  nor  could  such 
wrongdoer  set  up  any  such  lien  except  under  the  express  authority  of 
such  bailee. 

"2d.  That  no  proof  of  ownership  being  made,  the  burden  of  proof 
would  be  on  him,  who  asserted  the  existence  of  any  unsatisfied  lien, 
to  prove  it  affirmatively." 

The  court  instructed  the  jury  that  it  was  incumbent  upon  the 
plaintiff  to  satisfy  them  by  proof  that  the  plaintiff  had  both  the 
property,  and  the  right  of  immediate  possession;  and  that,  if  they 
were  satisfied  from  the  evidence  in  the  case,  that  the  carrier  had  a  Hen 
for  the  freight,  which  had  not  been  paid  or  waived,  then  the  action 
could  not  be  maintained. 

The  jury  found  for  the  defendants;  and,  being  inquired  of,  stated, 
that  they  found  for  defendants  on  the  ground  that  the  freight  had 
not  been  paid,  and  the  claim  of  the  carrier  had  not  been  waived. 

May,  J.  In  this  case  the  jury  were  instructed  that  it  was  incum- 
bent on  the  plaintiff  to  satisfy  them,  by  proof,  that  he  had  a  right  of 
property  in  the  goods  sued  for,  and  the  right  of  immediate  possession; 
and  that,  if  they  were  satisfied  from  the  evidence  in  the  case,  that 
the  carrier  had  a  lien  for  the  freight,  which  had  not  been  paid  or 
waived,  then  the  action  could  not  be  maintained.  Upon  the  rendi- 
tion of  the  verdict,  the  jury  being  inquired  of  by  the  court,  stated 
that  they  found  for  the  defendants,  upon  the  ground  that  the  freight 
had  not  been  paid  and  the  claim  of  the  carrier  had  not  been  waived.  - 

That  a  common  carrier  has  a  lien  upon  the  goods  transported  by 
him,  and  a  right  to  retain  the  possession,  as  against  the  general  owner, 
until  his  reasonable  charges  are  paid;  and  that  the  plaintiff,  in  an 
action  of  trover,  cannot  recover  without  proof  of  property  in  him- 
self, and  the  right  of  immediate  possession,  is  not  questioned  by  the 
learned  counsel  for  plaintiff.   Such  is  the  law. 

It  is,  however,  contended  that  the  right  to  retain  possession  of  the 
goods  transported,  which,  by  the  common  law,  attaches  to  a  com- 
mon carrier,  to  enforce  the  payment  of  his  charges,  is  of  such  a  nature 
that  it  does  not  deprive  the  general  owner  of  the  right  to  immediate 
possession,  as  against  a  wrongdoer;  and  constitutes  no  bar  to  the 
possession  of  the  property,  unless  set  up  by  the  authority  of  the 
party  holding  such  lien.  Upon  examination  of  the  authorities  we 
are  of  opinion  that  these  positions  are  well  maintained. 

It  has  been  repeatedly  decided,  both  in  England  and  in  this  coun- 
try, that  the  hen  of  a  factor  is  a  personal  privilege  which  is  not  trans- 


1 


CHAP.  II.]  A-MES    V.    PALMER.  453 

ferable,  and  that  no  question  upon  it  can  arise  except  between  the 
principal  and  factor.  Daubigny  et  al.  v.  Duval  et  ah,  5  D.  &  E.  G04; 
McCombie  v.  Davies,  7  East,  5;  Jones  v.  Sinclair,  2  N.H.  319;  Holly 
V.  Huggeford,  8  Piclv.  73.  In  this  State  the  same  principle  has  been 
adopted  in  relation  to  a  statute  lien.  Pearsons  v.  Tinker,  36  Maine, 
384. 

In  the  case  of  Holly  v.  Huggeford,  just  cited,  it  was  argued  in  de- 
fence, that  the  lien  of  the  factor  so  destroyed  the  right  of  possession 
in  the  general  owner,  that  he  could  not  maintain  an  action  of  trespass 
against  an  officer  who  had  attached  the  goods  as  the  property  of  the 
factor,  but  the  court  decided  that  such  a  position  was  untenable; 
and  Parker,  C.J.,  says,  that  "the  lien  of  a  factor  does  not  dispossess 
the  owner  until  the  right  is  exerted  by  the  factor.  It  is  a  privilege 
which  he  may  avail  himself  of,  or  not,  as  he  pleases.  It  continues 
only  while  the  factor  himself  has  the  possession;  and,  therefore,  if 
he  pledges  the  goods  for  his  own  debt,  or  suffers  them  to  be  attached, 
or  otherwise  parts  vrith  them  voluntarilj^,  the  lien  is  lost,  and  the 
owner  may  trace  and  recover  them,  or  he  may  sue  in  trespass  if  they 
are  forcibly  takeyi;  for  his  constructive  possession  continued  notwith- 
standing the  lien." 

No  reason  is  apparent  why  the  same  consequences  should  not 
attach  to  the  lien  of  a  common  carrier  as  to  that  of  a  factor.  In  both 
cases  the  nature  of  the  lien  is  the  same.  Both  are  common  law  liens; 
and  such  a  lien  has  very  properly  been  defined  to  be  the  right  of 
detaining  the  property,  on  whicli  it  operates,  until  the  claims  which 
are  the  basis  of  the  lien  are  satisfied.  Hammond  v.  Barclay,  2  East, 
235;  Oakes  v.  Moore  et  al.,  24  Maine,  214.  The  object  of  these  liens 
being  the  same,  their  effect  must  be  the  same.  Uhi  eadem  ratio  ibi 
idem  jus.  The  lien,  therefore,  of  a  common  carrier,  does  not  deprive 
the  owner  of  the  goods  of  his  right  to  immediate  possession,  as  against 
a  tortfeasor.  The  judge  presiding  at  the  trial,  therefore,  erred  in 
instructing  the  jury,  that  if  they  were  satisfied  that  the  carrier  had  a 
lien  for  the  freight,  which  had  not  been  paid  or  waived,  the  plaintiff 
could  not  recover. 

Exceptions  sustained  and  new  trial  granted. 


454  FISHER   V.    PRINCE.  [CHAP.  III. 


CHAPTER  III. 

RIGHT  OF  THE  CONVERTER  TO  RETURN  THE 
CHATTEL  IN  MITIGATION  OF  DAMAGES. 


FISHER  V.  PRINCE. 

3  Burr.  1363.     1762. 

Upon  shewing  cause  by  the  plaintiff's  counsel,  "Why,  upon  deliv- 
ering to  the  plaintiff  the  several  goods  and  chattels  for  which  this 
action  (which  was  an  action  of  trover)  was  brought,  and  paying  him 
his  costs  to  the  day  of  making  the  motion,  further  proceedings  should 
not  be  stayed;"  (which  rule  to  shew  cause  had  been  obtained  upon  a 
motion  made  by  the  counsel  for  the  defendant;)  it  was  urged  on  the 
part  of  the  plaintiff,  that  this  is,  in  effect,  a  motion  "To  bring  the 
goods  into  court;"  and  it  was  contrary  to  the  course  of  the  court,  in 
actions  of  trover,  to  bring  into  court  the  thing  demanded;  (excepting 
the  single  case  of  trover  for  monies  numbered ;)  and  that  the  reason 
which  has  been  often  given  for  it  is,  "That  this  court  do  not  keep  a 
warehouse:"  and  a  case  was  hinted  at,  where  a  motion  to  bring  in  a 
gold  watch  was  denied. 

And  the  court  denied  it  in  the  present  case,  and  discharged  the 
rule :  but  it  was  not  upon  that  general  principle  that  they  denied  it, 
but  upon  the  circumstances  of  the  case;  such  as  the  complicated 
quantity  of  the  goods  demanded,  and  the  uncertainty  of  their  remain- 
ing of  the  same  value  as  they  were  when  taken;  and  some  other  like 
circumstances.  For 

Lord  Mansfield  and  Mr.  Justice  Wilmot  both  concurred  in  the 
following  distinction,  "That  where  trover  is  brought  for  a  specific 
chattel,  of  an  ascertained  quantity  and  quality,  and  unattended  with 
any  circumstances  that  can  enhance  the  damages  above  the  real 
value,  but  that  its  real  and  ascertained  value  must  be  the  sole 
measure  of  the  damages,  there  the  specific  thing  demanded  may  be 
brought  into  court;  (and  Mr.  Justice  Wilmot  said,  this  was  the  more 
reasonable,  as  this  action  of  trover  comes  in  the  place  of  the  old 
action  of  detinue:)  where  there  is  an  uncertainty  either  as  to  the 
quantity  or  quality  of  the  thing  demanded,  or  that  there  is  any  tort 
accompanying  it  that  may  enhance  the  damages  above  the  real 
value  of  the  thing,  and  there  is  no  rule  whereby  to  estimate  the  addi- 
tional value,  there  it  shall  not  be  brought  in."  Lord  Mansfield  said, 


CHAP.  III.]  FISHER    V.    PRINCE.  455 

it  is  pity  that  a  false  conceit  should,  in  judicature,  be  repeated  as  an 
argument:  "The  court  does  not  keep  a  warehouse."  What  then? 
What  has  a  warehouse  to  do  with  ordering  the  thing  to  be  delivered 
to  the  plaintijff  ?  Money  paid  into  court  is  pa^Tnent  to  the  plaintiff. 
The  reason  and  spirit  of  cases  make  law;  not  the  letter  of  particular 
precedents.  In  trover  for  money  numbered,  or  in  a  bagg,  the  court 
have  ordered  it  to  be  brought  in:  yet  the  jury  may  give  more  in 
damages;  they  may  allow  interest,  (and  in  some  cases  they  ought.) 

The  reason  holds  to  every  other  case,  where  a  thing  clearly  remains 
of  the  same  value:  yet  the  jury  may  give  damages  for  the  detention. 

I  remember  its  being  done  twice  or  thrice,  in  things  of  small  value. 
It  ought  to  be  done,  to  prevent  vexatious  litigation;  which  a  plaintiff 
may  be  tempted  to  pursue,  when  in  all  events  he  is  sure  of  costs.  It 
ought  to  be  done,  because  it  is  the  specific  relief. 

It  ought  to  be  done;  because  at  the  trial,  when  the  thing  remams 
in  the  same  condition,  there  generally  is  a  rule  "To  deliver  it." 

An  estimated  value  is  a  precarious  measure  of  justice,  compared 
with  the  specific  thing. 

I  am  aware  of  the  cases  where  a  laced  head,  a  gold  watch,  a  dia- 
mond ring,  and  Chinese  pictures  were  refused  to  be  brought  in. 

But,  as  I  think,  "Such  motions  ought  neither  to  be  refused  or 
granted,  of  course,"  they  must  depend  upon  their  own  circumstances. 
No  injury  is  done  the  plaintiff,  if  the  court  should  think  "He  ought 
not  to  proceed  for  damages  beyond  the  specific  thing;"  because  he 
may  still  proceed  for  more,  at  the  peril  of  costs:  and  so  he  ought. 

But,  in  this  particular  case,  the  goods  are  altered,  and  their  value 
changed. 

Note.  —  In  the  Cases  on  Torts  (3rd  edition,  p.  390),  edited  by 
the  late  Dean  Ames,  there  was  printed  the  following  learned  note 
which,  by  the  courtesy  of  the  members  of  his  family,  is  here  repro- 
duced :  — 

"  On  principle,  and  by  the  earlier  English  decisions,  an  unaccepted 
tender  of  the  converted  goods  was  no  ground  for  reducing  the  amount 
of  the  plaintiff's  recovery  for  the  conversion.  Wilcock's  Case,  2  Salk. 
597;  Bowington  v.  Parnj,  2  Stra.  822;  Watkinson  v.  Cockshot,  Cooke, 
Pr.  Cas.  130.  An  opposite  practice  seems  to  have  begun  in  1731, 
Tuneyy.  Clark,  Cooke,  Pr.  Cas.  59;  1733,  Billings  v.  Wilcocks,  Cooke, 
Pr.  Cas.  59;  1739,  Cooke  v.  Holgate,  Pr.  Reg.  260;  Barnes,  Notes,  281; 
Cooke,  Pr.  Cas.  130,  s.  c. 

"But  these  cases  were  disregarded,  and  the  old  common  law  rule 
followed  in  Olivant  v.  Berino,  1  Wils.  23,  2  Stra.  1191,  s.  c;  Harding 
V.  Wilkin,  Sayer,  120  (explaining  Catling  v.  Bowling,  Say.  80). 

"These  cases  were  in  turn  overruled  in  1762  by  Fisher  v.  Prince, 
3  Burr.  1363,  where  Lord  Mansfield  and  Mr.  Justice  AVilmot  laid 
down  the  rule  that,  'where  trover  is  brought  for  a  specific  chattel,  of 


456  CARPENTER   V.    DRESSER.  [CHAP.  in. 

an  ascertained  quantity  and  quality,  and  unattended  with  any  cir- 
cumstances that  can  enhance  the  damages  above  the  real  value; 
.  .  .  there  the  specific  thing  demanded  may  be  brought  into  court 
(and  Mr.  Justice  Wilmot  said  this  was  the  more  reasonable,  as  this 
action  of  trover  comes  in  the  place  of  the  old  action  of  detinue).' 
Lord  Mansfield's  rule  has  since  prevailed  in  England." 

The  English  practice  was  approved  in  Rutland  Co.  v.  Bank  oj 
Middlebury,  32  Vt.  639  (but  cf.  Green  v.  Sperry,  16  Vt.  390;  Morgan 
V.  Kidder,  55  Vt.  367) ;  and  in  Bigelow  Co.  v.  Heintze,  53  N.  J.  L.  69, 
the  court  held  that  in  view  of  defendant's  renunciation  of  any 
claim  to  the  property,  the  defendant  was  entitled  to  nominal  dam- 
ages only  (but  cf.  Woolley  v.  Carter,  2  Halst.  (N.  J.  L.)  85).  See 
also  the  dictum  of  the  court  in  Gilbert  v.  Peck,  43  !Mo.  App.  577,  583. 


CARPENTER  v.  DRESSER. 

72  Me.  377.     I88I. 

On  exceptions  from  Superior  Court,  Cumberland. 

Trespass  against  the  sheriff  for  the  act  of  his  deputy  in  attaching 
certain  oil  paintings,  frames,  silver  plated  ware,  and  other  articles, 
on  a  writ  against  ^Morgan  and  Davenport,  who  were  at  the  time  auc- 
tioneers employed  by  the  plaintiff  to  sell  the  goods  at  auction. 

Peters,  J.  A  deputy  sheriff  wrongfully  attached  the  plaintiff's 
goods,  dispossessing  the  plaintiff  and  putting  a  keeper  in  charge  of 
his  store.  On  the  next  day,  the  deputy  tendered  to  the  plaintiff  a 
return  of  the  goods  uninjured,  and  in  the  same  condition  as  when 
attached  the  day  before.  The  plaintiff  refused  to  receive  them. 

It  was  ruled,  at  the  trial,  that  the  damages  for  the  attachment 
and  taking  should  be  limited  to  any  injury  necessarily  sustained 
by  the  plaintiff,  by  the  disturbance  of  his  possession  from  the  date  of 
the  attachment  to  the  date  of  the  offered  return.  This  was  error. 
The  general  rule  of  damages  applies  in  such  case.  The  plaintiff  was 
entitled  to  recover  what  the  entire  property  was  worth  when  it  was 
attached.  A  return  of  property  in  mitigation  of  damages  could  not 
be  forced  upon  the  owner  against  his  consent. 

When  repossession  and  redeliver^'  are  spoken  of,  in  the  cases  relied 
upon  by  the  defendant,  as  going  in  mitigation  of  damages,  it  has 
reference  to  a  return  of  the  property  with  the  consent  of  the  owner. 
A  person  cannot  be  said  to  possess,  who  does  not  consent  to  the  pos- 
session. Nor  can  there  be  a  redelivery  where  there  is  no  acceptance. 
A  mere  offer  to  deliver  is  not  a  delivery. 

It  has  been  held  that  an  officer,  hable  as  a  trespasser  for  irregularly 
distraining  goods  for  taxes,  may  be  entitled  to  have  the  amount  of 
the  taxes  deducted  from  the  damages  recoverable  against  him,  the 


CHAP,  m.]  CARPENTER    V.    DRESSER.  457 

taxes  being  regarded  as  thus  cancelled  and  paid.  It  is  for  the  owner's 
benefit  in  such  case  that  the  tax  be  regarded  as  paid.  And  other 
cases  founded  upon  the  same  or  a  similar  principle  may  be  found.  But 
in  all  of  them  the  doctrine  is  founded  upon  the  idea,  that  the  deduc- 
tion or  mitigation  is  allowed  with  the  implied  assent  of  the  owner. 
The  case  at  bar  is  not  such  a  case. 

The  case  most  relied  upon,  to  support  the  proposition  advocated 
by  the  defendant,  is  Delano  v.  Curtis,  7  Allen,  470.  But  in  that  case 
a  vital  element  was  wanting  which  is  not  absent  here.  In  that  case, 
the  defendant  did  not  take  the  property  into  his  own  possession,  or 
necessai'ily  exclude  the  owner  from  its  control.  He  merely  forbade, 
but  did  not  attempt  to  prevent,  a  removal  of  property  which  was 
upon  his  own  premises.  The  facts  are  not  very  fully  reported,  but 
Greenfield  Bank  v.  Leavitt,  17  Pick.  1,  is  cited  in  the  opinion  as  its 
authority,  and  the  latter  case  decides  only,  that  "if  the  property  for 
which  the  action  is  brought,  should  be  returned  to  and  received  by 
the  plaintiff,  it  shall  go  in  mitigation  of  damages."  In  Stickney  v. 
Allen,  10  Gray,  352,  the  same  court  refused  to  apply  the  doctrine, 
which  the  present  defendant  contends  for,  to  a  state  of  facts  calling 
for  its  application,  if  in  any  case  it  should  be  applied,  the  property 
taken  being  certain  stereot^q^e  plates  of  peculiar  value  to  the  plain- 
tiff, and  of  very  little  value  to  am^body  else.  But,  as  Putnam,  J., 
said,  in  Greenfield  Bank  v.  Leavitt,  supra,  "the  certainty  of  a  rule 
is  quite  an  equivalent  for  its  occasional  want  of  perfect  exactness." 

The  rule  asked  for  by  the  defendant  would  give  to  the  trespasser 
more  power  and  discretion  than  courts  are  accustom.ed  to  exercise 
which  order  an  acceptance  of  property  offered  to  be  returned  in  miti- 
gation of  damages,  after  a  hearing  as  to  its  justice  and  expediency. 
In  such  case,  by  the  power  of  the  courts, -an  owner  may  have  to  ac- 
cept a  return  of  his  property;  but  by  the  power  of  the  party  he  must 
accept  it,  if  the  defendant's  theory  prevails. 

It  is  true,  that  such  a  rule  would  work  well  in  a  few  peculiar  and 
exceptional  cases.  The  trouble  is,  that  it  would  operate  unjustly 
in  very  many  and  most  cases.  A  dividing  line  could  not  be  easily 
established.  The  rule  would  have  to  apply  to  all  cases  where  the 
trespass  is  not  wilful,  wanton  or  malicious.  This  would  give  the  elec- 
tion to  the  trespasser  to  decide  how  an  owner  shall  be  compensated 
for  his  trespasses.  It  would  havs  a  tendency  to  stimulate  carelessness 
and  unwarranted  experiments  in  attaching  property.  It  would  im- 
pose unusual  and  unreasonable  risks  and  responsi]:)ilities  upon  the 
owner.  He  may  lose  his  crcdit,  or  be  broken  up  in  his  business,  bj^an 
improvident  trespasser,  and  still  be  obliged  to  accept  his  goods  again. 
He  may,  in  the  meantime,  have  got  other  goods,  or  gone  into  other 
business,  and  not  be  favorably  situated  to  take  the  property  back. 
He  must  at  his  peril  decide  correctly  whether  the  trespass  was  a 
wanton  or  malicious  act  or  not.   How  is  he  to  ascertain  that  fact? 


458  CARPENTER    V.    DRESSER.  [CHAP.  III. 

How  may  he  know  whether  the  property  will  be  returned  or  not? 
How  long  shall  he  be  held  in  suspense  by  the  wrongdoer?  How  can 
he  always  know  whether  the  property  is  returned  in  the  same  con- 
dition as  when  taken  or  not?  In  most  cases,  his  embarrassments 
would  be  greater  than  he  could  bear.  The  law  does  not  impose  them 
upon  him. 

Exceptions  sustained. 

Note.  —  See,  accord,  Norman  v.  Rogers,  29  Ark.  365,  369 ;  Gibbs 
V.  Chase,  10  Mass.  125,  128;  Stickney  v.  Allen,  10  Gray  352  (but  cf. 
Delano  v.  Curtis,  7  All.  470);  Bringard  v.  Stellwagen,  41  Mich.  54, 
57;  Livermore  v.  Northrup,  44  N.Y.  107,  112;  Railroad  Co.  v.  O'Don- 
nell,  49  Ohio,  489,  503;  Whitaker  v.  Houghton,  86  Pa.  48;  Weaver  v. 
Ashcroft,  50  Tex.  427,  444. 


BOOK  V. 

INTRODUCTION  TO  THE  LAW  OF 
CONVEYANCING. 


CHAPTER  I. 
TENURE. 


BLACKSTONE,  COMMENTARIES. 

Book  11,  pp.  45,  51,  59. 

The  constitution  of  feuds  had  its  original  from  the  miHtary  policy 
of  the  northern  or  Celtic  nations,  the  Goths,  the  Huns,  the  Franks, 
the  Vandals,  and  the  Lombards,  who,  all  migrating  from  the  same 
offidna  gentium,  as  Crag  very  justly  entitles  it,  poured  themselves 
in  vast  quantities  into  all  the  regions  of  Europe,  at  the  declension 
of  the  Roman  empire.  It  was  brought  by  them  from  their  own  coun- 
tries, and  continued  in  their  respective  colonies  as  the  most  likely 
means  to  secure  their  new  acquisitions:  and  to  that  end,  large  dis- 
tricts or  parcels  of  land  were  allotted  by  the  conquering  general  to  the 
superior  officers  of  the  army,  and  by  them  dealt  out  again  in  smaller 
parcels  or  allotments  to  the  inferior  officers  and  most  deserving  sol- 
diers. These  allotments  were  called /eoc?a,  feuds,  fiefs,  or  fees;  which 
last  appellation  in  the  northern  language  signifies  a  conditional 
stipend  or  reward.  Rewards  or  stipends  they  evidently  were;  and 
the  condition  annexed  to  them  was,  that  the  possessor  should  do 
service  faithfully,  both  at  home  and  in  the  wars,  to  him  by  whom 
they  were  given;  for  which  purpose  he  took  the  juramentumfidelitatis, 
or  oath  of  fealty:  and  in  case  of  the  breach  of  this  condition  and 
oath,  by  not  performing  the  stipulated  service,  or  by  deserting  the 
lord  in  battle,  the  lands  were  again  to  revert  to  him  who  granted 
them. 

...  In  consequence  of  this  [introduction  of  the  feudal  system  into 
England]  it  became  a  fundamental  maxim  and  necessary  principle 
(though  in  reality  a  mere  fiction)  of  our  English  tenures  "that  the 
king  is  the  universal  lord  and  original  proprietor  of  all  the  lands  in 
his  kingdom;  and  that  no  man  doth  or  can  possess  any  part  of  it,  but 
what  has  mediately  or  immediately  been  derived  as  a  gift  from  him, 


460  BLACKSTONE,    COMMENTARIES.  [CHAP.  L 

to  be  held  upon  feodal  services."  ....  Such  tenants  as  held  under 
the  king  immediately,  when  they  granted  out  portions  of  their  lands 
to  inferior  persons,  became  also  lords  with  respect  to  those  inferior 
persons,  as  they  were  still  tenants  with  respect  to  the  king,  and,  thus 
partaking  of  a  middle  nature,  were  called  mesne,  or  middle,  lords. 
So  that  if  the  king  granted  a  manor  to  A.,  and  he  granted  a  portion 
of  the  land  to  B.,  now  B.  was  said  to  hold  of  A.,  and  A.  of  the  king; 
or,  in  other  words,  B.  held  his  lands  immediately  of  A.,  but  mediately 
of  the  king.  The  king  therefore  was  styled  lord  paramount;  A.  was 
both  tenant  and  lord,  or  was  a  mesne  lord:  and  B.  was  called  tenant 
paravail,  or  the  lowest  tenant;  being  he  who  was  supposed  to  make 
avail,  or  profit  of  the  land.  In  this  manner  are  all  the  lands  of  the 
kingdom  holden,  which  are  in  the  hands  of  subjects:  for,  according 
to  Sir  Edward  Coke,  in  the  law  of  England  we  have  not  properly 
allodium;  which,  we  have  seen,  is  the  name  by  which  the  feudists 
abroad  distinguish  such  estates  of  the  subject,  as  are  not  holden  of 
any  superior.  So  that  at  the  first  glance  we  may  observe,  that  our 
lands  are  either  plainly  feuds,  or  partake  very  strongly  of  the  feodal 
nature. 

All  tenures  being  thus  derived,  or  supposed  to  be  derived,  from 
the  king,  those  that  held  immediately  under  him,  in  right  of  his  crowTi 
and  dignity,  were  called  his  tenants  in  capite,  or  in  chief;  which  was 
the  most  honourable  species  of  tenure,  but  at  the  same  time  subjected 
the  tenants  to  gi-eater  and  more  burthensome  services,  than  inferior 
tenures  did.  This  distinction  ran  through  all  the  different  sorts  of 
tenure,  of  which  I  now  proceed  to  give  an  account. 

I.  There  seems  to  have  subsisted  among  our  ancestors  four  prin- 
cipal species  of  lay  tenures,  to  which  all  others  may  be  reduced :  the 
grand  criteria  of  which  were  the  nature  of  the  several  services  or 
renders,  that  were  due  to  the  lords  from  their  tenants.  The  services, 
in  respect  of  their  quality,  were  either  free  or  hose  services;  in  respect 
of  their  quantity  and  the  time  of  exacting  them,  were  either  certain 
or  uncertain.  Free  services  were  such  as  were  not  unbecoming  the 
character  of  a  soldier  or  a  freeman  to  perform ;  as  to  serve  under  his 
lord  in  the  wars,  to  pay  a  sum  of  money,  and  the  like.  Base  services 
were  such  as  were  only  fit  for  peasants  or  persons  of  a  servile  rank ;  as 
to  plough  the  lord's  land,  to  make  his  heclges,  to  carry  out  his  dung, 
or  other  mean  employments.  The  certain  services,  whether  free  or 
base,  were  such  as  were  stinted  in  quantity,  and  could  not  be  ex- 
ceeded on  any  pretence ;  as,  to  pay  a  stated  annual  rent,  or  to  plough 
such  a  field  for  three  days.  The  uncertain  depended  upon  unknown 
contingencies;  as,  to  do  military  service  in  person,  or  pay  an  assess- 
ment in  lieu  of  it,  when  called  upon;  or  to  wind  a  horn  whenever  the 
Scots  invaded  the  realm;  which  are  free  services:  or  to  do  whatever 
the  lord  should  command ;  which  is  a  base  or  villein  service. 

From  the  various  combinations  of  these  services  have  arisen  the 


CHAP.  I.]  BLACKSTONE,    COMMENTARIES.  461 

four  kinds  of  lay  tenure  which  subsisted  in  England,  till  the  middle 
of  the  last  century;  and  three  of  which  subsist  to  this  day.  Of  these 
Bracton  (who  wrote  under  Henry  the  Third)  seems  to  give  the  clear- 
est and  most  compendious  account,  of  any  author  ancient  or  modern; 
of  which  the  following  is  the  outline  or  abstract.  "Tenements  are 
of  two  kinds,  frank-tenement  and  villenage.  And,  of  frank-tenements, 
some  are  held  freely  in  consideration  of  homage  and  knight-service; 
others  in  free-socage  with  the  service  of  fealty  only."  And  again, 
"of  villenages  some  are  pure,  and  others  privileged.  He  that  holds 
in  pure  villeriage  shall  do  whatever  is  commanded  him,  and  always 
be  bound  to  an  uncertain  service.  The  other  kind  of  villenage  is 
called  villein-socage ;  and  these  villein-socmen  do  villein  services,  but 
such  as  are  certain  and  determined."  Of  which  the  sense  seems  to 
be  as  follows:  first,  where  the  service  wa,s  free  but  uncertain,  as  mili- 
tary service  with  homage,  that  tenure  was  called  the  tenure  in  chiv- 
alry, per  servitiian  militare,  or  by  knight-service.  Secondly,  where 
the  service  was  not  only  free,  but  also  certain,  as  by  fealty  onh',  by 
rent  and  fealty,  etc.,  that  tenure  was  called  liberum  socagium,  or 
free-socage.  These  were  the  only  free  holdings  or  tenements;  the 
others  were  villenous  or  servile,  as  thirdly,  w^here  the  service  was  base 
in  its  nature,  and  uncertain  as  to  time  and  quantity,  the  tenure  was 
purum  villenagium,  absolute  or  pure  villenage.  Lastly,  where  the 
service  was  base  in  its  nature,  but  reduced  to  a  certainty,  this  was 
still  villenage,  but  distinguished  from  the  other  by  the  name  of  privi- 
leged villenage,  villenagium  privilegiatum;  or  it  might  be  still  called 
socage  (from  the  certainty  of  its  services),  but  degraded  by  their 
baseness  into  the  inferior  title  of  villanum  socagium,  villein-socage. 

Note.  —  The  obligations  of  the  tenants,  under  the  different  forms 
of  tenure,  will  be  found  in  Littleton,  Tenures,  §§  85  et  seq. 

By  St.  12  Car.  II,  c.  24  (1660),  many  burdens  of  tenure  were  abol- 
ished, and  tenures  not  of  free  and  common  socage  were,  with  some 
exceptions,  converted  into  such  tenure.  The  burdens  of  this  tenure 
were  small,  —  being  practically  reduced  to  an  obligation  to  pay  rent 
and  a  relief.  A  relief  was  a  sum  payable  by  an  heir  of  full  age,  on 
succeeding  to  his  ancestor's  estate.  This  sum  was  one  year's  rent. 
It  follows  that,  if  land  were  held  by  a  tenant  in  free  and  common  soc- 
age, and  that  either  no  rent,  or  a  merely  nominal  rent,  were  reserved, 
the  tenant  was,  in  practical  effect,  the  absolute  owner.  Rents  pay- 
able by  a  tenant  in  free  and  common  socage  are  now  redeemable. 
St.  44  and  45  Vict.  c.  41,  §  45  (1881). 

After  the  passage  of  the  St.  12  Car.  II,  c.  24,  land  could  be  held, 
and  may  in  England  still  be  held,  not  in  socage,  but  (a)  in  frankal- 
moign, and  (b)  by  copyhold.  Littleton  said  (§§  133,  135):  "Tenant 
in  frankalmoign  is,  where  an  abbot,  or  prior,  or  another  man  of  reli- 
gion, or  of  holy  church,  holdeth  of  his  lord  in  frankalmoign;  that  is 


462  STATUTE    OF    QUIA   EMPTORES.  [CHAP.  I. 

to  say  in  Latin,  in  liberam  eleemosinam,  that  is,  in  free  arms.  .  .  . 
And  they,  which  hold  in  frankalmoign,  are  bound  of  right  before 
God  to  make  orisons,  prayers,  masses,  and  other  divine  services,  for 
the  souls  of  their  grantor  or  feoffor,"  etc.  And  in  §§  73,  75:  "Tenant 
by  copy  of  court  roll,  is,  as  if  a  man  be  seised  of  a  manor,  within 
which  manor  there  is  a  custom  which  hath  been  used  time  out  of 
mind  of  man,  that  certain  tenants  within  the  same  manor  have  used 
to  have  lands  and  tenements,  to  hold  to  them  and  their  heirs  in  fee 
simple,  or  fee  tail,  or  for  term  of  life,  etc.,  at  the  will  of  the  lord  accord- 
ing to  the  custom  of  the  same  manor.  .  .  .  And  these  tenants  are 
called  tenants  by  copy  of  court  roll;  because  they  have  no  other  evi- 
dence concerning  their  tenements,  but  only  the  copies  of  court  rolls." 


BLACKSTONE,  COMMENTARIES. 

Book  II,  pp.  72,  89. 

The  last  consequence  of  tenure  in  chivalry  was  escheat;  which  is 
the  determination  of  the  tenure,  or  dissolution  of  the  mutual  bond 
between  the  lord  and  tenant  from  the  extinction  of  the  blood  of  the 
latter  by  either  natural  or  civil  means:  if  he  died  without  heirs  of 
his  blood,  or  if  his  blood  was  corrupted  and  stained  by  commission 
of  treason  or  felony,  whereby  every  inheritable  quality  was  entirely 
blotted  out  and  abolished.  In  such  cases  the  land  escheated,  or  fell 
back,  to  the  lord  of  the  fee.  .  .  . 

Escheats  are  equally  incident  to  tenure  in  socage,  as  they  were 
to  tenure  by  knight-service. 


STATUTE  OF  QUIA  EMPTORES. 
18  Edw.  I,  c.  1.     1290. 

Forasmuch  as  purchasers  of  lands  and  tenements  of  the  fees  of 
great  men  and  other  lords  have  many  times  heretofore  entered  into 
their  fees,  to  the  prejudice  of  the  lords,  to  whom  the  freeholders  of 
such  great  men  have  sold  their  lands  and  tenements  to  be  holden 
in  fee  of  their  feoffors  and  not  of  the  chief  lords  of  the  fees,  whereby 
the  same  chief  lords  have  many  times  lost  their  escheats,  marriages, 
and  wardships  of  lands  and  tenements  belonging  to  their  fees,  which 
thing  seems  very  hard  and  extreme  unto  those  lords  and  other  great 
men,  and  moreover  in  this  case  manifest  disheritance,  our  lord  the 
king  in  his  parliament  at  Westminster  after  Easter  the  eighteenth 
year  of  his  reign,  that  is  to  wit  in  the  quinzine  of  Saint  John  Baptist, 
at  the  instance  of  the  great  men  of  the  realm  granted,  provided,  and 
ordained,  that  from  henceforth  it  should  be  lawful  to  every  freeman 
to  sell  at  his  own  pleasure  his  lands  and  tenements  or  part  of  them, 


CHAP.  I.]  VAN    RENSSELAER   V.    HAYS.  463 

SO  that  the  feoffee  shall  hold  the  same  lands  or  tenements  of  the  chief 
lord  of  the  same  fee,  by  such  service  and  customs  as  his  feoffor  held 
before. 

2.  And  if  he  sell  any  part  of  such  lands  or  tenements  to  any,  the 
feoffee  shall  immediately  hold  it  of  the  chief  lord,  and  shall  be  forth- 
with charged  with  the  services  for  so  much  as  pertaineth  or  ought  to 
pertain  to  the  said  chief  lord,  for  the  same  parcel,  according  to  the 
quantity  of  the  land  or  tenement  so  sold ;  and  so  in  this  case  the  same 
part  of  the  service  shall  remain  to  the  lord,  to  be  taken  by  the  hands 
of  the  feoffee,  for  the  which  he  ought  to  be  attendant  and  answerable 
to  the  same  chief  lord  according  to  the  quantity  of  the  land  or  tene- 
ment sold  for  the  parcel  of  the  service  so  due. 

3.  And  it  is  to  be  understood  that  by  the  said  sales  or  purchases 
of  lands  or  tenements,  or  any  parcel  of  them,  such  lands  or  tenements 
shall  in  no  wise  come  into  mortmain,  either  in  part  or  in  whole, 
neither  by  policy  nor  craft,  contrary  to  the  form  of  the  statute  made 
thereupon  of  late.  And  it  is  to  wit  that  this  statute  extendeth  but 
only  to  lands  holden  in  fee  simple,  and  that  it  extendeth  to  the  time 
coming.  And  it  shall  begin  to  take  effect  at  the  Feast  of  Saint  An- 
drew the  Apostle  next  coming. 


VAN  RENSSELAER  v.  HAYS. 

19  N.Y.  68.     1859. 

Denio,  J.  The  law  as  to  holding  lands  and  of  transmitting  the  title 
thereto  from  one  subject  to  another  must  have  been  a  matter  of  the 
first  importance  in  our  colonial  state;  and  there  can  be  no  doubt  but 
that  the  great  body  of  the  English  law  upon  that  subject,  so  far  as  it 
regarded  the  transactions  of  private  individuals,  immediately  became 
the  law  of  the  Colony,  subject  to  such  changes  as  were  introduced  by 
colonial  legislation.  The  lands  were  holden  under  grants  from  the 
Crown,  and  as  the  King  was  not  within  the  statute  quia  emptores,  a 
certain  tenure,  which,  after  the  act  of  12  Charles  II  (ch.  24)  abolish- 
ing military  tenures,  must  have  been  that  of  free  and  common  socage, 
was  created  as  between  the  King  and  his  grantee.  I  have  elsewhere 
expressed  the  opinion  that  the  King  might,  notwithstanding  the 
statute  against  subinfeudation,  grant  to  his  immediate  tenant  the 
right  to  alien  his  land  to  be  holden  of  himself,  and  thus  create  a 
manor,  where  the  land  was  not  in  tenure  prior  to  the  18th  Edward  I. 
(The  People  v.  Van  Rensselaer,  5  Seld.  334.)  But  with  the  exception 
of  the  tenure  arising  upon  royal  grants,  and  such  as  might  be  created 
by  the  King's  immediate  grantees  under  express  license  from  the 
Crown,  I  am  of  opinion  that  the  law  forbidding  the  creating  of  new 
tenants  by  means  of  subinfeudation  was  always  the  law  of  the  Col- 


464  VAN    RENSSELAER    V.    HAYS.  [CHAP.  I. 

ony,  and  that  it  was  the  law  of  this  State,  as  well  before  as  after  the 
passage  of  our  act  concerning  tenures,  in  1787.  A  contrary  theory 
would  lead  to  the  most  absurd  conclusions.  We  should  have  to  hold 
that  the  feudal  system,  during  the  whole  colonial  period,  and  for  the 
first  ten  years  of  the  State  government,  existed  here  in  a  condition  of 
vigor  which  had  been  unknowTi  in  England  for  more  than  three  cen- 
turies before  the  first  settlement  of  this  country.  We  should  be 
obliged  to  resolve  questions  arising  upon  early  conveyances,  under 
which  many  titles  are  still  held,  by  the  law  which  prevailed  in  Eng- 
land during  the  first  two  centuries  after  the  Conquest,  before  the 
commencement  of  the  Year  Books,  and  long  before  Littleton  wrote 
his  Treatise  upon  Tenures. 

The  fact  that  the  statute  w^e  are  considering  was  reenacted  in  this 
State  in  1787,  has  no  tendency  to  show  that  it  had  not  the  force  of 
law  prior  to  that  time.  Indeed,  the  contrary  inference  is  nearly  irre- 
sistible, when  it  is  seen  how  it  came  to  be  reenacted.  The  compila- 
tion of  statutes  prepared  by  Jones  and  Varick,  and  enacted  by  the 
Legislature,  embracing  the  statute  of  tenures  and  a  great  number  of 
other  English  statutes,  was  made  in  pursuance  of  an  act  passed  in 
1786.  It  recited  the  constitutional  provision  which  I  have  mentioned, 
and  that  such  of  the  said  statutes  "as  had  been  generally  supposed 
to  extend  to  the  late  Colony  and  to  this  State,"  were  contained  in  a 
great  number  of  volumes,  and  were  conceived  in  a  style  and  language 
improper  to  appear  in  the  statute  books  of  this  State.  The  persons 
mentioned  were,  therefore,  authorized  to  collect  and  reduce  them 
into  proper  form,  in  order  that  such  of  them  as  were  approved  might 
be  enacted  into  laws  of  this  State,  to  the  intent  that  thereafter  none 
of  the  statutes  of  England  or  Great  Britain  should  be  in  force  here. 
(1  Jones  &  Var.,  ch.  35,  281.)  The  statute  of  tenures  was  not,  there- 
fore, understood  as  introducing  a  new  law,  but  was  the  putting  into  a 
more  suitable  form  certain  enactments  which  it  was  conceived  had 
the  force  of  law  in  the  Colony,  and  which  the  Constitution  had  made 
a  part  of  the  law  of  the  State.  My  views  upon  this  question  corre- 
spond with  those  expressed  by  Mr.  Justice  Platt,  in  18  Johnson, 
186.  The  English  crown  lawj-'ers  appear  never  to  have  doubted  but 
that  the  statute  was  the  law  of  the  Colonies.  Sir  John  Somers, 
Attorney-General,  and  afterwards  Lord  Keeper  of  the  Great  Seal  in 
the  reign  of  William  III,  and  who  is  pronounced  by  Macaulay  to 
have  been,  in  some  respects,  the  greatest  man  of  his  age,  together 
with  the  Solicitor-General,  Trevor,  gave  a  written  opinion  to  the 
King  in  council,  that  all  the  lands  in  Virginia  were  held  immediately 
of  the  Crown,  and  that  the  escheats  and  tenure  accrued  to  him  and 
not  to  the  grantors  of  the  lands.  The  like  opinion  was  given  by  Sir 
Edward  Northey,  Attorney-General  to  Queen  Anne,  in  1705,  in 
respect  to  lands  in  New  Jersey.  He  said  that  the  grantees  of  the 
proprietors  to  whom  the  Duke  of  York  had  assigned  his  patent,  held 


CHAP.  I.]  MATTHEWS    V.    WARD.  465 

of  the  Queen  and  not  of  these  proprietors:  and  in  another  opinion, 
by  the  same  law  officer,  respecting  quit-rents  in  the  Colony  of  New 
York,  he  states  that  no  tenure  arose  upon  grants  by  the  Duke  of 
York  before  he  came  to  the  Crown,  he  being  a  subject ;  but  that  where 
the  gi-ant  was  by  the  Crown  there  was  a  tenure,  "the  Crown  not 
being  within  the  statute  of  quia  emptores  terrarum."  (Chalmer's 
Colonial  Opinions,  142,  144,  149.) 

These  opinions  assume  that  the  statute  prevailed  here  to  the 
same  extent  as  in  England,  and  subject  to  the  same  exception  in 
favor  of  roysd  grants,  upon  which  a  tenure  always  arises.  Judge 
RuGGLES,  in  giving  the  opinion  of  the  court  in  De  Peyster  v.  Michael, 
2  Seld.  467,  was  led  to  doubt  whether  the  statute  was  ever  in  force 
in  the  Colonies,  from  finding  that  several  patents,  issued  by  the  co- 
lonial governors,  pui-ported  to  create  manors  and  to  authorize  the 
patentees  to  grant  lands  to  be  holden  of  the  patentees.  But  if  the 
King  could,  notwithstanding  the  statute,  license  his  immediate 
tenants  to  create  seigniories,  as  was  attempted  to  be  shown  by  one  of 
the  opinions  in  The  People  v.  Van  Rensselaer,  and  as  I  am  satisfied  is 
the  case,  these  instruments  are  quite  consistent  with  the  idea  that 
the  statute  was  in  force  in  the  Colony  of  New  York.  Assuming  this 
to  have  been  so,  our  own  law,  in  the  particular  under  consideration, 
is  and  has  at  all  times,  since  the  organization  of  political  society  here, 
been  the  same  as  the  law  of  England. 


MATTHEWS  v.   WARD. 

10  Gill  &  J.  (Md.)  443.     1839. 

Archer,  J.  The  Lord  Proprietary,  by  the  express  terms  of  the 
charter,  held  his  lands  in  free  and  common  socage,  and  his  grantees, 
or  tenants,  anterior  to  the  revolution,  held  by  the  same  tenure. 
Services  of  a  feudal  character,  or  of  the  nature  of  feudal  services, 
were  attached  to  his  grants,  and  the  incidents  of  fealty,  rent,  escheat 
and  fines  for  alienation  or  some  of  them,  were  the  necessarj^  incidents 
thereto.  At  the  revolution,  when  the  people  of  the  State  assumed  the 
powers  of  government,  and  the  right  theretofore  existing  in  the  pro- 
prietary'', these  services  and  incidents  were  in  effect  abolished;  thus 
the  oath  of  allegiance  to  the  State  superseded  the  incident  of  fealty; 
quit  rents  were  abolished,  and  grants  were  made  without  being  sub- 
ject to  fine  on  the  alienation  of  the  grantee;  and  escheats,  though 
they  existed,  had  essentially  changed  their  nature,  no  longer  being 
technically  founded  on  the  same  principles.  Instead  of  going  to  the 
lord  of  the  fee,  who  took  the  land  in  lieu  of  the  services,  because  by 
the  death  of  the  tenant  without  his  heirs  there  was  no  one  to  perform 
the  feudal  services;  they  reverted  to  the  State  as  property  without  an 


466  MATTHEWS    V.    WARD.  [CHAP.  I. 

owner,  upon  a  principle  of  justice,  that  the  whole  community  should 
hold  the  derelict  property  for  the  benefit  of  all.  After  the  revolution, 
therefore,  lands  became  allodial,  subject  to  no  tenure,  nor  to  any  of 
the  services  incident  thereto,  and  if  allodial,  the  supreme  power  of 
the  State  would  succeed  to  them  as  the  king  would  succeed  to  allodial 
property  in  England,  by  the  common  law,  upon  the  death  of  the 
owner  without  next  of  kin.  It  is  said  by  Lord  Mansfield,  in  1  Wil. 
Black.  163-4,  "In  personal  estates  which  are  allodial  by  law,  the 
king  is  last  heir  where  no  kin,  and  the  king  is  as  well  entitled  to 
that  as  to  any  other  personal  estate."  And  accordingly,  where  one 
dies  intestate,  without  wife  or  kindred,  Sir  William  Blackstone, 
2  Black.  Com.  505,  says,  that  the  usual  course  now  is.  for  some  one 
to  procure  letters  patent  from  the  crown,  or  other  authority  from  the 
king,  and  then  the  ordinary  of  course  grants  administration  to  such 
appointee  of  the  crown.  Thus  the  king  as  parens  patrice  is  entitled 
to  the  property  thus  situated,  and  takes  it  as  a  general  trustee 
of  the  kingdom.  In  analogy,  therefore,  to  the  admitted  condition  of 
allodial  property,  and  in  conformity  to  the  reason  and  justice  of  the 
thing,  when  the  owner  of  real  estate  dies  without  heir,  the  State  is 
ultimus  hoeres,  and  takes  the  property  for  the  benefit  of  all. 

Note.  —  See,  accord,  Wallace  v.  Harmstad,  4A  Pa.  492,  499.  This 
case  would  seem  to  be  inconsistent  with  Ingersoll  v.  Sergeant,  1  Wh. 
337,  but  does  not  profess  to  overrule  it. 

It  will  rarely  occur  that  there  will  be  any  difference  in  result 
whether  a  court  holds  that  land  is  allodial,  subject  to  be  taken  by 
the  State  in  case  of  the  death  of  the  owner  without  heirs,  or  that  it 
•  is  held  of  the  State,  as  lord  (provided  it  be  also  held  that  the  Statute 
of  Quia  Emptores  is  in  force).  There  is  but  little  authority  on  the 
point.  In  a  number  of  States,  including  New  York,  a  person  having 
a  fee  simple  in  land  is  now  declared,  by  statute,  to  be  the  absolute 
owner. 

See  the  learned  discussion  of  the  matter  in  Gray,  Rule  against 
Perpetuities,  2nd  ed.,  §§  22-28. 


CHAP.  II.]  JOHNSON  V.    WHITON.  467 


CHAPTER  II. 
ESTATES  OR  TENANCIES. 


A.  In  Fee  Simple. 
LITTLETON,   TENURES,  §  1. 

Tenant  in  fee  simple  is  he  which  hath  lands  or  tenements  to  hold 
to  him  and  his  heirs  forever.  And  it  is  called  in  hatin  feodum  simplex, 
for  feodum  is  the  same  that  inheritance  is,  and  simplex  is  as  much  as 
to  say,  lawful  or  pure.  And  so  feodum  simplex  signifies  a  lawful  or 
pure  inheritance.  For  if  a  man  would  purchase  lands  or  tenements 
in  fee  simple,  it  behoveth  him  to  have  these  words  in  his  purchase, 
To  have  and  to  hold  to  him  and  to  his  heirs:  for  these  words,  his  heirs, 
make  the  estate  of  inheritance.  For  if  a  man  purchase  lands  by  these 
words.  To  have  and  to  hold  to  him  for  ever,  or  by  these  words,  To 
have  and  to  hold  to  him  and  his  assigns  for  ever;  in  these  two  cases 
he  hath  but  an  estate  for  term  of  life,  for  that  there  lack  these  words, 
his  heirs,  which  words  only  make  an  estate  of  inheritance  in  all  feoff- 
ments and  grants. 

Note.  —5ean  v.  French,  140  Mass.  229,  231:  ''It  is  the  settled 
rule,  that,  in  a  deed  to  an  individual,  the  word  'heir'  is  necessary  to 
create  an  estate  of  inheritance  in  the  grantee,  if  he  takes  to  his  own 
use,  and  not  in  trust." 

This  rule  has  been  followed  by  most  courts,  but  it  has  been 
changed  by  statute  in  many  States.   And  see  44  &  45  Vict.  c.  41,  §  51. 

It  never  applied  to  devises.  See  Co.  Lit.  9  b. 

In  the  United  States,  it  has  not  been  applied  to  conveyances  in 
trust.  See  Newhall  v.  Wheeler,  7  Mass.  189. 


JOHNSON  V.  WHITON. 

159  Mass.  424.     1893. 

Contract,  to  recover  a  deposit  paid  under  an  agreement  to  pur- 
chase land,  which  provided  that  in  case  the  title  was  defective  the 
vendor  should  refund  the  deposit.  The  case  was  submitted  to  the 
Superior  Court,  and,  after  judgment  for  the  defendant,  to  this  court, 


468  JOHNSON  V.  vmiTON.  [chap.  II. 

on  appeal,  on  agreed  facts,  the  material  portions  of  which  appear  in 
the  opinion. 

Holmes,  J.  This  is  an  action  to  recover  a  deposit  paid  under  an 
agreement  to  purchase  land.  The  land  in  question  passed  under  the 
seventh  clause  of  the  will  of  Royal  Whiton  to  his  five  grandchildren, 
and  a  deed  executed  by  them  was  tendered  to  the  plaintiff,  but  was 
refused  on  the  ground  that  one  of  the  grandchildren,  Sarah  A. 
Whiton,  could  not  convey  a  fee  simple  absolute,  and  this  action  is 
brought  to  try  the  question.  The  clause  of  the  will  referred  to  is  as 
follows:  "After  the  decease  of  all  my  children,  I  give,  devise,  and 
bequeath  to  my  granddaughter,  Sarah  A.  Whiton,  and  her  heirs  on 
her  father's  side,  one  third  part  of  all  my  estate,  both  real  and  per- 
sonal, and  to  my  other  grandchildren  and  their  heirs  respectively  the 
remainder,  to  be  divided  in  equal  parts  between  them." 

We  see  no  room  for  doubt  that  the  legal  title  passed  by  the  fore- 
gomg  clause.  We  think  it  equally  plain  that  the  words  "and  her 
heh's  on  her  father's  side"  are  words  of  limitation,  and  not  words  of 
purchase.  The  only  serious  question  is  whether  the  effect  of  them 
was  to  give  Sarah  A.  Whiton  merely  a  qualified  fee,  and  whether  by 
reason  of  the  qualification  she  is  unable  to  convey  a  fee  simple.  We 
do  not  think  that  it  would  be  profitable  to  follow  the  discussions  to 
be  found  in  1  Prest.  Est.  449  et  seq.,  and  Challis,  Real  Prop.  215  et  seq. 
By  the  old  English  law,  to  take  land  by  descent  a  man  must  be  of  the 
blood  of  the  first  purchaser;  Co.  Lit.  12  a;  2  Bl.  Com.  220;  and  by 
the  St.  3  &  4  Will.  IV.  c.  106,  §  2,  descent  is  traced  from  the  pur- 
chaser. For  instance,  if  the  land  had  been  acquired  in  fee  simple  by 
Sarah  A.  Whiton's  father,  it  could  have  descended  from  her  only  to 
her  heirs  on  her  father's  side.  The  English  rule  means  that  inherited 
property  does  not  pass  from  one  line  to  the  other,  and  is  like  the  ruk 
of  the  French  customary  law,  Propres  ne-remontent  pas.  P.  Viollet 
Hist,  du  Droit  Ci\Til  Frang.  (2d  ed.)  845.  In  this  state  of  the  law  of 
descent  it  was  no  great  stretch  to  allow  a  limitation  in  the  first  in- 
stance to  Sarah  of  a  fee  with  the  same  descendible  quality  that  it 
would  have  had  in  the  case  supposed.  Challis,  Real  Prop.  216,  222, 
224;  Co.  Lit.  220  b.  Blake  v.  Hynes,  11  L.  R.  Ir.  284.  1  Prest.  Est. 
474.  See  St.  22  &  2.3  Vict.  c.  35,  §  19.  Especially  is  this  true  if,  as  Mr. 
Challis  argues,  the  grantee  under  such  a  limitation  could  convey  a 
fee  simple,  just  as  he  or  she  could  have  done  if  the  estate  actually 
had  descended  from  the  father.  But  our  statute  of  descent  looks  no 
further  than  the  person  himself  who  died  seised  of  or  entitled  to  the 
estate.  In  other  vv'ords,  inherited  property  may  pass  from  one  line  to 
the  other  in  Massachusetts.  Pub.  Sts.  c.  125.  The  analog}'  on  which 
is  founded  the  argument  for  the  possibility  of  limitations  like  that 
under  discussion  is  wanting.  A  man  caimot  create  a  new  kind  of 
inheritance.  Co.  Lit.  27.  Com.  Dig.  Estates  by  Grant  (A  6).  These 
and  other  authorities  show,  too,  that  except  in  the  case  of  a  grant  by 


CHAP.  II.]        FIRST    UNn'ERSALIST    SOCIETY    V.    BOLAND.  4G9 

the  King,  if  the  words  "on  her  father's  side"  do  not  effect  the  pur- 
pose intended,  they  are  to  be  rejected,  leaving  the  estate  a  fee  simple, 
which  was  Mr.  Washburn's  opinion.  1  Washb.  Real  Prop.  (5th  ed.) 
61.  Certainly  it  would  seem  that  in  this  Commonwealth  an  estate 
descending  only  to  heirs  on  the  father's  side  was  a  new  kind  of 
inheritance. 

What  we  have  to  consider,  however,  is  not  the  question  of  descent, 
but  that  of  alienability;  and  that  question  brings  a  further  consider- 
ation into  \new.  It  would  be  most  unfortunate  and  unexpected  if  it 
should  be  discovered  at  this  late  day  that  it  was  possible  to  impose 
such  a  qualification  upon  a  fee,  and  to  put  it  out  of  the  power  of  the 
owners  to  give  a  clear  title  for  generations.  In  the  more  familiar  case 
of  an  estate  tail,  the  Legislature  has  acted  and  the  statute  has  been 
carried  to  the  farthest  verge  by  construction.  Pub.  Sts.  c.  120,  §  15; 
Coombs  V.  Anderson,  138  Mass.  376.  It  is  not  too  much  to  say  that  it 
would  be  plainly  contrary  to  the  policy  of  the  law  of  Massachusetts 
to  deny  the  power  of  Sarah  A.  Whiton  to  convey  an  unqualified  fee. 

Judgment  for  defendant. 


FIRST  UNIVERSALIST  SOCIETY  v.  BOLAND. 

155  Mass.  171.     1892. 

One  Clark  deeded  land  to  the  plaintiff,  to  have  and  to  hold  so  long 
as  said  land  should  be  devoted  to  the  uses,  interests,  and  support 
of  those  doctrines  of  the  Christian  religion  embraced  in  the  Confes- 
sion of  Faith  adopted  by  the  General  Convention  of  Universalists, 
held,  etc.  The  question  was  whether  plaintiff  had  a  marketable  title 
in  such  land. 

Allen,  J.  The  grant  to  the  plaintiff  was  to  have  and  to  hold,  etc., 
"so  long  as  said  real  estate  shall  by  said  society  or  its  assigns  be  de- 
voted to  the  uses,  interests,  and  support  of  those  doctrines  of  the 
Christian  rehgion,"  as  specified.  "And  when  said  real  estate  shall 
by  said  society  or  its  assigns  be  diverted  from  the  uses,  interests,  and 
support  aforesaid  to  any  other  interests,  uses,  or  purposes  than  as 
aforesaid,  then  the  title  of  said  society  or  its  assigns  in  the  same  shall 
forever  cease,  and  be  forever  vested  in  the  following  named  persons," 
etc.  These  words  do  not  grant  an  absolute  fee,  nor  an  estate  on  con- 
dition, but  an  estate  which  is  to  continue  till  the  happening  of  a  cer- 
tain event,  and  then  to  cease.  That  event  maj^  happen  at  any  time, 
or  it  may  never  happen.  Because  the  estate  may  last  forever,  it  is  a 
fee.  Because  it  may  end  on  the  happening  of  the  event,  it  is  what  is 
usually  called  a  determinable  or  qualified  fee.  The  grant  was  not 
upon  a  condition  subsequent,  and  no  re-entry  would  be  necessary; 
but  by  the  terms  of  the  grant  the  estate  was  to  continue  so  long  as 


470  STATUTE    DE    BONIS.  [cHAP.  IL 

the  real  estate  should  be  devoted  to  the  specified  uses,  and  when  it 
should  no  longer  be  so  devoted,  then  the  estate  would  cease  and 
determine  by  its  own  limitation.  Numerous  illustrations  of  words 
proper  to  create  such  qualified  or  determinable  fees  are  to  be  found 
in  the  books,  one  of  which,  as  old  as  Walsingham^s  Case,  2  Plowd. 
557,  is  "as  long  as  the  church  of  St.  Paul  shall  stand."  Brattle  Square 
Church  V.  Grant,  3  Gray,  142,  147;  Easterbrooks  v.  Tillinghast,  5 
Gray,  17;  Ashley  v.  Warner,  11  Gray,  43;  Attorney  General  v.  Merri- 
mack Manuf.  Co.,  14  Gray,  586,  612;  Fifty  Associates  v.  Howland, 
11  Met.  99,  102;  Owen  v.  Field,  102  Mass,  90,  105;  1  Washb.  Real 
Prop.  (3d  ed.)  79;  2  Washb.  Real  Prop.  (3d  ed.)  20,  21;  4  Kent  Com. 
126,  127,  132,  note;  2  Crabb,  Real  Prop.  §§  2135,  2136;  2  Flint.  Real 
Prop.  230,  232;  Shep.  Touchst.  121,  125. 

A  question  or  doubt,  however,  has  arisen,  though  not  urged  by 
counsel  in  this  case,  whether  after  all  there  is  now  any  such  estate  as 
a  qualified  or  determinable  fee,  or  whether  this  form  of  estate  was 
done  away  with  by  the  Statute  Quia  Emptores.  See  Gray,  Rule 
against  Perpetuities,  §§  31-40,  where  the  question  is  discussed  and 
authorities  are  cited.  We  have  considered  this  question,  and  what- 
ever may  be  the  true  solution  of  it  in  England,  where  the  doctrine 
of  tenure  still  has  some  significance,  we  think  the  existence  of  such 
an  estate  as  a  qualified  or  determinable  fee  must  be  recognized  in 
this  country,  and  such  is  the  general  consensus  of  opinion  of  courts 
and  text  writers.  Jamaica  Pond  Aqueduct  v.  Chandler,  9  Allen,  159, 
168;  Leonard  v.  Burr,  18  N.Y.  96;  Gillespie  v.  Broas,  23  Barb.  370; 
State  v.  Brown,  3  Dutch.  13;  Henderson  v.  Hunter,  59  Penn.  St. 
335;  Wiggijis  Ferry  Co.  v.  Ohio  &  Mississippi  Railway,  94  111.  83, 
93;  1  Washb.  Real  Prop.  (3d  ed.)  76-78;  4  Kent  Com.  9,  10,  129. 
See  also,  of  English  works  in  addition  to  citations  above,  Shep. 
Touchst.  101;  2  Bl.  Com.  109,  154,  155;  1  Cruise  Dig.  tit.  1,  §§  72- 
76;  2  Flint.  Real  Prop.  136-138;  1  Prest.  Est.  431,  441;  Challis,  Real 
Prop.  197-208. 

Since  the  estate  of  the  plaintiff  may  determine,  and  since  there 
is  no  valid  hmitation  over,  it  follows  that  there  is  a  possibiUty  of 
reverter  in  the  original  grantor,  Clark. 

[The  court  held,  accordingly,  that  the  title  of  the  plaintiff  was  im- 
perfect.] 

B.  In  Fee  Tail. 

STATUTE   DE  BONIS. 

13  Edw.  I,  c.  1.     :^85. 

First,  concerning  lands  that  many  times  are  given  upon  condition, 
that  is,  to  wit,  where  any  giveth  his  land  to  any  man  and  his  wife,  and 


CIL\P.  II.]  STATUTE   DE   BONIS.  471 

to  the  heirs  begotten  of  the  bodies  of  the  same  man  and  his  wife, 
with  such  condition  expressed  that  if  the  same  man  and  his  wife 
die  without  heir  of  their  bodies  between  them  begotten,  the  land  so 
given  shall  revert  to  the  giver  or  his  heir;  in  case  also  where  one  giveth 
lands  in  free  marriage,  which  gift  hath  a  condition  annexed,  though 
it  be  not  expressed  in  the  deed  of  gift,  which  is  this,  that  if  the  hus- 
band and  wife  die  without  heir  of  their  bodies  begotten,  the  land  so 
given  shall  revert  to  the  giver  or  his  heir ;  in  case  also  where  one  giveth 
land  to  another  and  the  heirs  of  his  body  issuing,  it  seemed  very 
hard  and  yet  seemeth  to  the  givers  and  their  heirs,  that  their  will 
being  expressed  in  the  gift  was  not  heretofore  nor  yet  is  observed. 
In  all  the  cases  aforesaid  after  issue  begotten  and  born  between  them, 
to  whom  the  lands  were  given  under  such  condition,  heretofore  such 
feoffees  had  power  to  aliene  the  land  so  given,  and  to  disinherit  their 
issue  of  the  land,  contrary  to  the  minds  of  the  givers,  and  contrary  to 
the  form  expressed  in  the  gift :  and  further,  when  the  issue  of  such 
feoffee  is  faihng,  the  land  so  given  ought  to  return  to  the  giver  or  his 
heir  by  form  of  gift  expressed  in  the  deed,  though  the  issue,  if  any 
were,  had  died;  yet  by  the  deed  and  feoffment  of  them,  to  whom 
land  was  so  given  upon  condition,  the  donors  have  heretofore  been 
barred  of  their  reversion  of  the  same  tenements  which  was  directly 
repugnant  to  the  form  of  the  gift :  wherefore  our  lord  the  king,  per- 
ceiving how  necessary  and  expedient  it  should  be  to  provide  remedy 
in  the  aforesaid  cases,  hath  ordained,  that  the  will  of  the  giver  accord- 
ing to  the  form  in  the  deed  of  gift  manifestly  expressed  shall  be  from 
henceforth  observed,  so  that  they  to  whom  the  land  was  given  under 
such  condition  shall  have  no  power  to  aliene  the  land  so  given,  but 
that  it  shall  remain  unto  the  issue  of  them  to  whom  it  was  given  after 
their  death,  or  shall  revert  unto  the  giver  or  his  heirs  if  issue  fail, 
either  by  reason  that  there  is  no  issue  at  all,  or  if  any  issue  be,  it  fail 
by  death,  the  heir  of  such  issue  failing. 

Note.  —  Estates  in  fee  tail  arose  by  force  of  this  statute.  For 
the  effect,  at  common  law,  of  a  gift  to  a  man  and  the  heirs  of  his 
body  see  Leake,  Law  of  Property  in  Land,  p.  35,  and  Burnett  v. 
Burnett,  17  S.C.  545. 

A  tenant  in  tail  was  permitted  by  the  courts  to  convey  an  estate 
in  fee  simple,  through  the  operation  of  a  collusive  suit,  called  a  com- 
mon recovery.  This  seems  to  have  been  first  sanctioned  in  1473,  in 
Taltarum's  Case,  Y.B.  12  Edw.  IV.  19.  For  the  details  of  such  col- 
lusive suit  see  Blackstone,  Commentaries,  Book  ii,  pp.  357  et  seq. 

By  St.  3  and  4  Will.  IV,  c.  74,  a  tenant  in  tail  was  empowered 
to  convey  a  fee  simple  by  the  "more  simple  modes  of  assurance" 
therein  provided. 

An  estate  could  be  given  to  a  man,  or  woman,  and  the  heirs  of  his, 
or  her,  body,  by  any  spouse,  in  which  case  it  was  a  fee  tail  general; 


472  LITTLETON,    TENURES.  [CIL\P.  II. 

or  by  a  specified  spouse,  in  which  case  it  was  a  fee  tail  special.  An 
estate  could  be  given  to  a  man,  or  woman,  and  the  heirs  male  of  his, 
or  her,  body,  in  which  case  it  was  a  fee  tail  male ;  or  the  heirs  female,  in 
which  case  it  was  a  fee  tail  female.  See  Littleton,  Tenures,  §§  13  ef  seq. 

The  word  "heirs"  was  as  indispensable  in  creating  a  fee  tail,  as 
in  creating  a  fee  simple.  The  words  "of  the  body"  were  those  com- 
monly used,  but  other  words  having  the  same  significance  were  suffi- 
cient. Co.  Lit.'  20,  a,  b. 

In  the  United  States,  estates  in  fee  tail  survive  in  a  few,  but  only  a 
few.  States.  The  statutory  provisions  abolishing  them  are  not  uni- 
form, —  usually  they  either  convert  estates  in  fee  tail  into  estates 
in  fee  simple,  or  convert  them  into  life  estates  to  the  tenants,  with 
remainders  in  fee  simple  to  the  issue  of  the  tenants. 

Wherever  estates  in  fee  tail  survive,  the  tenant  is  allowed,  in  some 
simple  maimer,  to  convey  the  fee  simple,  —  that  is,  to  dock  the  entail. 


C.   For  Life. 
LITTLETON,  TENURES,  §§  32,  56. 

Tenant  in  fee  tail  after  possibility  of  issue  extinct  is,  where  tene- 
ments are  given  to  a  man  and  to  his  wife  in  especial  tail,  if  one  of 
them  die  without  issue,  the  survivor  is  tenant  in  tail  after  possibility 
of  issue  extinct.  And  if  they  have  issue,  and  the  one  die,  albeit  that 
during  the  life  of  the  issue,  the  survivor  shall  not  be  said  tenant  in 
tail  after  possibility  of  issue  extinct;  yet  if  the  issue  die  without  issue, 
so  as  there  be  not  any  issue  alive  which  may  inherit  by  force  of  the 
tail,  then  the  surviving  party  of  the  donees  is  tenant  in  tail  after 
possibility  of  issue  extinct. 

Tenant  for  term  of  life,  is  where  a  man  letteth  lands  or  tenements 
to  another  for  term  of  the  life  of  the  lessee,  or  for  term  of  the  life  of 
another  man.  In  this  case  the  lessee  is  tenant  for  term  of  life.  But 
by  common  speech,  he  which  holdeth  for  term  of  his  own  life,  is 
called  tenant  for  term  of  his  life;  and  he  which  holdeth  for  term  of 
another's  life,  is  called  tenant  for  term  of  another  man's  life. 

Note.  •—  In  Roseboom  v.  Van  Vechten,  5  Den.  (N.Y.)  414,  the 
court  said  (p.  424) :  "Under  the  will  of  Jacob  Roseboom,  his  widow 
acquired  an  estate  durante  viduitate  in  this  lot  of  land.  That  was  an 
estate  for  her  life,  determinable  on  her  ceasing  to  be  such  widow,  and 
during  its  continuance  was  a  freehold." 

In  Warner  v.  Tanner,  38  Ohio  118,  land  was  conveyed  to  one 
Bartlett  "  while  said  premises  shall  be  used  as  and  for  manufacturing 
cheese."  The  court  said  (p.  121) :  "  It  is  well  settled  that  if  one  grant 
an  estate  to  a  man  and  woman  during  coverture,  or  as  long  as  the 


CHAP.  II.]  LITTLETON,    TENURES.  473 

grantee  or  lessee  shall  dwell  in  such  a  house  or  use  the  premises  for 
a  specified  purpose,  as,  for  instance,  the  manufacture  of  cheese  there- 
on, or  for  any  like  uncertain  time,  the  grantee  or  lessee  has  in  judg- 
Jient  of  law  a  freehold." 

The  estate  would  seem  to  be  a  life  estate  if  it  is  determinable  at 
the  will  of  a  person  other  than  the  landlord.  Thus,  if  A  gives  land 
to  B,  to  hold  so  long  as  C  wishes.  See  Beeson  v.  Burton,  12  C  B.  647. 
Maule,  J.,  said  (p.  659) :  "It  is  well  established  that  an  estate  which 
may  last  for  a  man's  life  is,  ordinarily,  a  freehold.  An  estate  for  life, 
determinable  on  an  event  which  is  not  in  the  power  of  the  lord  from 
whom  it  is  held,  is  a  freehold.  An  estate  determinable  on  a  condition, 
which  condition  cannot  arise  at  the  absolute  will  of  the  lord,  is  a 
freehold." 

If  land  were  given  to  A,  for  the  life  of  B,  and  A  died,  during  the 
life  of  B,  "he  that  first  entreth  shall  hold  the  land  during  the  other 
man's  life."  Co.  Lit.  41  b.  A  person  who  so  entered  was  called  a 
common  occupant.  If  land  were  given  to  A,  to  have  and  to  hold  to 
him  and  his  heirs  during  the  life  of  B,  and  A  died,  during  the  life  of 
B,  the  heirs  of  A  would  take,  not  by  descent,  but  as  special  occupants. 
But  statutes  have  now  altered  the  common  law,  the  residue  of  the 
ierm,  on  the  death  of  A,  going  in  some  States  to  A's  executor  or 
-idministrator,  and  in  other  States  to  A's  heirs. 


KKNT,  COMMENTARIES. 

Vol.  II,  p.  130. 

If  the  wife,  at  the  time  of  marriage,  be  seised  of  an  estate  of  in- 
heritance in  land,  the  husband,  upon  the  marriage,  becomes  seised 
of  the  freehold  jure  uxoris,  and  he  takes  the  rents  and  profits  during 
their  joint  lives.  It  is  a  freehold  estate  in  the  husband,  since  it  must 
continue  during  their  joint  lives,  and  it  may,  by  possibility,  last  dur- 
ing his  life.  It  will  be  an  estate  in  him  for  the  life  of  the  wife  only, 
unless  he  be  a  tenant  by  the  curtesy. 


LITTLETON,  TENURES,  §§35,36. 

Tenant  by  the  curtesy  of  England  is  where  a  man  taketh  a  wife 
seised  in  fee  simple,  or  in  fee  tail  general,  or  seised  as  heir  in  tail 
especial,  and  hath  issue  by  the  same  wife,  male  or  female  born  alive, 
albeit  the  issue  after  dieth  or  liveth,  yet  if  the  wife  dies,  the  luisband 
shall  hold  the  land  during  his  life  by  the  law  of  England.  And  he  is 
called  tenant  bj'  the  curtesy  of  England,  because  this  is  used  in  no 
other  realm  but  in  England  only. 


474  WILLIAMS    V.    LAMBE.  _  [CHAP.  II. 

And  some  have  said,  that  he  shall  not  be  tenant  by  the  curtesy, 
unless  the  child,  which  he  hath  by  his  wife,  be  heard  cry;  for  by  the 
cry  it  is  proved  that  the  child  was  bom  alive.  Therefore  qucere. 

Tenant  in  dower  is  where  a  man  is  seised  of  certain  lands  or  tene- 
ments in  fee  simple,  fee  tail  general,  or  as  heir  in  special  tail,  and 
taketh  a  wife,  and  dieth,  the  wife,  after  the  decease  of  her  husband, 
shall  be  endowed  of  the  third  part  of  such  lands  and  tenements  as 
were  her  husband's  at  any  time  dming  the  coverture,  to  have  and  to 
hold  to  the  same  wife  in  severalty,  by  metes  and  bounds,  for  term  of 
her  life,  whether  she  hath  issue  by  her  husband  or  no,  and  of  what 
age  soever  the  wife  be,  so  as  she  be  past  the  age  of  nine  years  at  the 
time  of  the  death  of  her  husband,  for  she  must  be  above  nine  years 
old  at  the  time  of  the  decease  of  her  husband,  otherwise  she  shall  not 
be  endowed. 

Note.  —  By  statute,  the  rules  of  the  common  law  set  forth  in  the 
above  extracts  from  Kent  and  Littleton  have  been  greatly  changed. 
Usually,  a  husband  has  no  right  in  his  wife's  land,  other  than  his 
right  of  curtesy.  The  extent  of  the  rights  given  to  the  spouse  by 
curtesy  and  dower,  and  the  conditions  precedent  to  the  creation  of 
such  rights,  have  also  been  frequently  altered  by  statutes. 


WILLIAMS  V.   LAMBE. 

3  Bro.  Ch.  364.     1791. 

This  was  a  bill  for  dower,  stating  that  the  plaintiff  was  lawfully 
married  to  William  WiUiams,  and  continued  his  wife  to  the  time  of 
his  death.  That  William  Williams  being  seised  of  lands,  etc.,  situated 
in  Del^^m,  in  the  county  of  Hertford,  during  the  coverture,  in  Feb- 
ruary, 1783,  sold  the  same  to  the  defendant,  who  entered  into  pos- 
session of  the  same,  and  that  William  Williams  died  in  May,  1786, 
leaving  the  plaintiff  his  widow.  The  bill,  therefore,  prayed  a  discov- 
ery of  the  lands,  and  that  defendant  might  assign  to  her  one  third 
part,  as  her  dower.  The  defendant  pleaded  to  the  discovery  and 
rehef ,  that  he  was  a  purchaser  of  the  estate  (subject  to  a  mortgage) 
for  valuable  consideration,  without  notice  of  the  vendor  being 
married. 

Lord  Chancellor  said  the  only  question  was,  whether  a  plea  of 
purchase  without  notice,  would  he  against  a  bill  to  set  out  dower: 
that  he  thought  where  the  party  is  pursuing  a  legal  title,  as  dower  is, 
that  plea  does  not  apply,  it  being  only  a  bar  to  an  equitable  not  to 
a  legal  claim;  he  therefore  overruled  the  plea. 

Note.  —  In  Grady  v.  McCorkle,  57  Mo.  172,  the  court  said  (p.l74): 


CHAP.  II.]  LITTLETON,    TE>rUEES.  475 

"The  right  of  dower  attaches  whenever  there  is  a  seizin  by  the 
husband  during  the  marriage,  and  unless  it  is  rehnquished  by  the 
wife  in  the  manner  prescribed  by  law,  it  becomes  absolute  at  the 
husband's  death.  After  the  right  of  dower  has  once  attached,  it  is 
not  in  the  power  of  the  husband  alone  to  defeat  it  by  any  act  in  the 
nature  of  an  alienation  or  charge.  It  is  a  right  in  law,  fixed  from  the 
moment  the  facts  of  marriage  and  seizin  concur,  and  becomes  a  title 
paramount  to  that  of  any  person  claiming  under  the  husband  by 
subsequent  act.  (Co.  Lit.  32  a.)  The  alienation  of  the  husband, 
therefore,  w^hether  voluntary,  as  by  deed  or  will,  or  involuntary,  by 
proceedings  against  him  or  otherwise,  will  confer  no  title  on  the 
alienee,  as  against  the  wife  in  respect  of  her  dower.  It  is  a  necessary 
consequence  of  this  rule,  that  all  charges  or  derivative  interest  cre- 
ated b}^  the  husband,  subsequent  to  the  attachment  of  the  wife's 
right,  are  voidable  as  to  that  part  of  the  land  which  is  recovered  in 
dower." 

Similarly,  after  married  women  were  given  the  legal  capacity  to 
convey  land,  the  conveyance  by  a  married  woman  of  land  o\STied  by 
her  did  not  defeat  her  husband's  right  of  curtesy  therein.  Johnson 
V.  Fritz,  44  Pa.  449. 

But  these  rules  have  frequently  been  altered  by  statute. 


D.  For  Years. 

LITTLETON,  TENURES,  §58. 

Tenant  for  term  of  years  is  where  a  man  letteth  lands  or  tene- 
ments to  another  for  term  of  certain  years,  after  the  number  of  years 
that  is  accorded  between  the  lessor  and  the  lessee.  And  when  the 
lessee  entereth  by  force  of  the  lease,  then  is  he  tenant  for  term  of 
years. 

Note. — Blackstone  said  (Commentaries,  Book  ii,  p.  140):  "An 
estate  for  years  is  a  contract  for  the  possession  of  lands  or  tenements, 
for  some  determinate  period.  ...  If  the  lease  be  but  for  half  a  year 
or  a  quarter,  or  any  less  time,  this  lessee  is  respected  as  a  tenant  for 
years." 

There  is  no  limit,  at  common  law,  to  the  length  of  a  tcnn  for  years. 

Co.  Lit.  45  b:  "A  man  maketh  a  lease  for  21  years  if  J.  S.  live  so 
long;  this  is  a  good  lease  for  years." 

Co.  Lit.  46  b:  "And  true  it  is,  that  to  many  purposes  he  is  not 
tenftat  for  years  until  he  enter;  as  a  release  made  to  him  is  not  good 
to  him  to  increase  his  estate,  before  entry;  but  he  may  release  the 
rent  reserved  before  entry,  in  respect  of  the  privity.  Neither  can  the 
lessor  grant  away  the  reversion  by  the  name  of  the  reversion,  before 


476  COKE    UPON    LITTLETON.  [CHAP.  II. 

entry.  But  the  lessee  before  entry  hath  an  interest,  interesse  termini, 
grantable  to  another." 


E.  From  Year  to  Year. 

Note.  —  The  law  permits  what  may  be  called  running  leases. 
Thus  A  leases  to  B  from  year  to  year.  Unless  the  lessor  and  lessee 
have  otherwise  agreed,  such  a  lease  may  only  be  terminated,  by 
either  the  lessor  or  the  lessee,  by  six  months'  notice,  directed  to  the 
end  of  the  year.  If  neither  gives  such  notice,  the  lease  continues  on 
the  same  terms  for  another  year,  and  so  on. 

There  may  be  running  leases  for  periods  other  than  a  year,  —  thus, 
from  month  to  month,  or  week  to  week.  These  may  respectively  be 
terminated  by  a  month's  notice,  directed  to  the  end  of  the  month; 
or  a  week's  notice  directed  to  the  end  of  the  week. 


F.  At  Will. 

LITTLETON,  TENURES,  §  68. 

Tenant  at  will  is,  where  lands  or  tenements  are  let  by  one  man  to 
another,  to  have  and  to  hold  to  him  at  the  will  of  the  lessor,  by  force 
of  which  lease  the  lessee  is  in  possession.  In  this  case  the  lessee  is 
called  tenant  at  will,  because  he  hath  no  certain  nor  sure  estate,  for 
the  lessor  may  put  him  out  at  what  time  it  pleaseth  him. 

Note.  —  Co.  Lit.  55  a:  " Every  lease  at  will  must  in  law  be  at  the 
will  of  both  parties,  and  therefore  when  the  lease  is  made,  to  have 
and  to  hold  at  the  will  of  the  lessor,  the  law  implieth  it  to  be  at  the 
will  of  the  lessee  also." 


G.  At  Sufferance. 

COKE  UPON   LITTLETON,  57  b. 

There  is  a  great  diversity  between  a  tenant  at  will  and  a  tenant 
at  sufferance;  for  tenant  at  will  is  always  by  right,  and  a  tenant  at 
sufferance  entereth  by  a  lawful  lease,  and  holdeth  over  by  wrong.  A 
tenant  at  sufferance  is  he  that  at  the  first  came  in  by  lawful  demise, 
and  after  his  estate  ended  continueth  in  possession  and  wrongfully 
holdeth  over. 

Note.  —  See  Rising  v.  Stannard,  17  Mass.  282,  288. 


CHAP.  II.J  LITTLETON,    TENURES.  47d 


LITTLETON,  TENLTIES,  §  57. 

And  every  one  which  hath  an  estate  in  any  lands  or  tenements  for 
term  of  his  own  or  another  man's  Ufe,  is  called  tenant  of  freehold,  and 
none  other  of  a  lesser  estate  can  have  a  freehold :  but  they  of  a  greater 
estate  have  a  freehold;  for  he  in  fee  simple  hath  a  freehold,  and  ten- 
ant in  tail  hath  a  freehold,  etc. 


478  BLACKSTONE,    COMMENTARIES.  [CHAP.  IIL 


CHAPTER  III. 

JOINT  TENANTS,   PARCENERS,   AND  TENANTS  IN 

COMMON. 


BLACKSTONE,   COMMENTARIES. 
Book  II,  pp.  180.  182,  183,  185,  187,  188,  192,  193,  194. 

An  estate  in  joint  tenancy  is  where  lands  or  tenements  are  gi*anted 
to  two  or  more  persons,  to  hold  in  fee  simple,  fee  tail,  for  life,  for 
years  or  at  will. 

The  creation  of  an  estate  in  joint  tenancy  depends  on  the  wording 
of  the  deed  or  devise,  by  which  the  tenants  claim  title:  for  this 
estate  can  only  arise  by  purchase  or  grant,  that  is,  by  the  act  of  the 
parties,  and  never  by  the  mere  act  of  law.  Now,  if  an  estate  be  given 
to  a  plurality  of  persons,  without  adding  any  restrictive,  exclusive, 
or  explanatory  words,  as  if  an  estate  be  granted  to  A  and  B  and  their 
heirs;  this  makes  them  immediately  joint  tenants  in  fee  of  the  lands. 

The  entire  tenancy  upon  the  decease  of  any  of  them  remains  to  the 
survivors,  and  at  length  to  the  last  survivor;  and  he  shall  be  entitled 
to  the  whole  estate  whatever  it  be. 

If  one  joint  tenant  ahens  and  conveys  his  estate  to  a  third  person; 
here  the  joint  tenancy  is  severed,  and  turned  into  tenancj^  in  com- 
mon; for  the  grantee  and  the  remaining  joint  tenant  hold  by  different 
titles  (one  derived  from  the  original,  the  other  from  the  subsequent, 
grantor). 

If  an  estate  in  fee  be  given  to  a  man  and  his  wife,  they  are  neither 
properly  joint  tenants,  nor  tenants  in  common:  for  husband  and  wife 
being  considered  as  one  person  in  law,  they  cannot  take  the  estate  by 
moieties,  but  both  are  seised  of  the  entirety  per  tout  et  non  per  my: 
the  consequence  of  which  is,  that  neither  the  husband  nor  the  wife 
can  dispose  of  any  part  without  the  assent  of  the  other,  but  the  whole 
must  remain  to  the  survivor. 

An  estate  held  in  coparcenary  is  where  lands  of  inheritance  descend 
from  the  ancestor  to  two  or  more  persons.  It  arises  either  by  com- 
mon law  or  particular  custom.  By  common  law:  as  where  a  person 
seised  in  fee-simple  or  in  fee-tail  dies,  and  his  next  heirs  are  two  or 
more  females,  his  daughters,  sisters,  aunts,  cousins,  or  their  repre- 
sentatives: in  this  case  they  shall  all  inherit,  as  will  be  more  fully 
sho^Ti  when  we  treat  of  descents  hereafter;  and  these  co-heirs  are 


CHAP.  III.]  RIGDEN   V.    VALLIER.  479 

then  called  coparceners;  or,  for  brevity,  parceners  only.  Parceners  by 
particular  custom  are  where  lands  descend,  as  in  gavelkind,  to  all  the 
males  in  equal  degree,  as  sons,  brothers,  uncles,  &c.  And,  in  either 
of  these  cases,  all  the  parceners  put  together  make  but  one  heir,  and 
have  but  one  estate  among  them. 

They  are  properly  entitled  each  to  the  whole  of  a  distinct  moiety; 
and  of  course  there  is  no  jus  accrescendi,  or  survivorship  between 
them,  for  each  part  descends  severally  to  their  respective  heirs,  though 
the  unity  of  possession  continues.  And  as  long  as  the  lands  continue 
in  a  course  of  descent,  and  united  in  possession,  so  long  are  the  ten- 
ants therein,  whether  male  or  female,  called  parceners. 

If  one  parcener  aliens  her  share,  though  no  partition  be  made,  then 
are  the  lands  no  longer  held  in  coparcenary,  but  in  common. 

Tenancy  in  conomon  may  be  created,  either  by  the  destruction  of 
the  two  other  estates,  in  joint-tenancy  and  coparcenary,  or  by  special 
limitation  in  a  deed.  .  .  .  Care  must  be  taken  not  to  insert  words 
which  imply  a  joint  estate;  and  then  if  lands  be  given  to  two  or  more, 
and  it  be  not  joint-tenancy,  it  must  be  a  tenancy  in  common.  But 
the  law  is  apt  in  its  constructions  to  favor  joint-tenancy  rather  than 
tenancy  in  common;  because  the  divisible  services  issuing  from  land 
(as  rent,  &c.)  are  not  divided,  nor  the  entire  services  (as  fealty) 
multiplied,  by  joint-tenancy,  as  they  must  necessarily  be  upon  a 
tenancy  in  common. 

There  is  no  survivorship  between  tenants  in  common. 


RIGDEN  V.  VALLIER. 

3  Atk.  731.     1751. 

A  FATHER  gave  certain  property  to  his  daughters,  "to  be  equally 
divided  between  them."  The  question  was  whether  a  surviving  sister 
took,  to  the  exclusion  of  those  entitled  to  the  property  of  a  deceased 
sister. 

Lord  Chancellor  Hardwicke.  Equally  to  be  divided  is  now 
established  to  be  a  tenancy  in  common  in  a  will,  or  if  it  was  equally 
only,  without  the  subsequent  words  annexed  to  it,  would  be  so 
construed. 

But  then  it  is  insisted  to  be  otherwise  in  the  case  of  a  deed;  and 
though  I  do  not  find  any  solemn  determination  of  this  sort,  yet  the 
distinction  to  be  sure  is  often  made  in  the  books. 

In  the  case  of  Fisher  versus  Wigg,  in  1  P.  W.  14,  and  1  Lord  RajTn. 
622,  there  was  a  surrender  of  a  copyhold  estate  to  the  use  of  A,  B, 
and  C  and  their  heirs,  equally  to  be  divided  betwixt  them  and  their 
heirs  respectively.  This  was  held  by  Mr.  Justice  Gould  and  Turton 
a  tenancy  in  common,  by  reason  of  the  apparent  intent  of  the  sur- 


480  RIGDEN    V.    VALUER.  [cHAP.  III. 

render,  against  the  opinion  of  Lord  Chief  Justice  Holt,  who  thought 
it  a  joint  tenancy. 

•     I  do  not  find  that  this  judgment  has  been  reversed,  so  that  it  is 
undoubtedly  an  authority. 

The  case  in  2  Vent.  367,  in  Chancery,  is  also  to  the  same  purpose, 
where  a  covenant  to  stand  seised  to  the  use  of  A  for  life,  and  after- 
wards to  two  equally  to  be  divided,  and  their  heirs  and  assigns  for 
ever,  was  adjudged  by  the  Lord  Keeper  North  to  be  a  tenancy  in 
common. 

I  have  had  the  register  searched  for  this  case,  and  cannot  find  it; 
but  notwithstanding  it  was  not  entered,  it  might  have  been  so  deter- 
mined, and  is  so  cited  by  Mr.  Justice  Turton  in  Fisher  versus  Wigg. 

Hammerton  versus  Clayton,  14  Car.  2,  Rot.  43,  was  adjudged  a 
tenancy  in  common  upon  the  same  words;  but  this  case  is  not  much 
to  be  depended  upon,  because  at  the  end  of  Lord  Raymond's  report 
of  Fisher  versus  Wigg  it  is  said  to  be  cited  by  Sir  Edward  Northey 
only,  and  the  case  was  not  to  be  found. 

In  the  case  of  Smith  versus  Johnson,  Pasch.  32  Car.  2,  in  the  Court 
of  King's  Bench,  there  was  a  feoffment  to  two  and  their  heirs, 
equally  to  be  divided  between  them,  to  the  use  of  them  and  their 
heirs:  upon  the  breaking  of  the  case,  Scroggs,  Chief  Justice,  and 
DoLBEN,  Justice,  were  of  opinion  that  it  was  a  tenancy  in  common; 
but  Jones,  Justice,  was  of  another  opinion,  upon  the  difference 
between  a  deed  and  a  will. 

But  notwithstanding  there  was  a  rule  in  that  case  for  judgment 
nisi,  yet  nobody  being  satisfied  with  the  opinion,  the  rule  was  upon 
motion  set  aside,  and  it  was  made  an  ulterius  concilium,  and  ended 
afterwards  by  the  death  of  the  parties. 

In  the  present  case  I  think  it  a  tenancy  in  common,  whether  the 
instrument  be  considered  as  a  deed,  or  a  will. 

Note.  —  In  Caines  v.  Lessee  of  Grant,  5  Bin.  (Pa.)  119,  Yeates, 
J.,  said  (p.  122):  "In  ancient  times,  courts  of  law  favoured  joint- 
tenancies,  in  order  to  prevent  the  splitting  of  tenures  and  ser\-ices, 
1  Wms.  21.  But  the  statute  12  Car.  2,  c.  24,  s.  1,  has  reduced  the 
several  sorts  of  tenure,  to  socage  tenure  only,  and  the  reason  of  the 
law  having  ceased  upon  the  abolition  of  tenures,  courts  of  law  incline 
the  same  way  with  chancery.  1  Wils.  165,  3  Atk.  525.  Courts  of 
equity,  however,  had  long  before  been  favourable  to  tenancies  in  com- 
mon, wherever  they  could  lay  hold  of  any  words  to  construe  it  so, 
from  its  being  a  greater  equality,  a  better  provision,  and  preventing 
estates  from  going  by  accident  contrary  to  the  intent.  1  Ves.  166. 
While  the  laws  of  this  commonwealth  continue  in  their  present  state, 
and  certain  words  in  conveyances  and  wills  have  the  legal  operation 
of  conferring  an  estate  in  joint-tenancy,  we  are  imperiously  bound 
so  to  declare  it.  But  where  two  or  more  persons,  with  or  without 


CHAP.  III.]  BOLAND   V.    McKOWEN.  481 

families,  have  joined  together,  to  take  up  or  purchase  lands,  in  order 
to  advance  their  fortunes  in  life,  I  should  require  strong  proof  to 
satisfy  my  mind,  that  they  meditated  survivorship  in  their  trans- 
actions, and  gambled  their  lives  respectively  against  each  other." 

Statutes  are  now  common,  changing  the  common-law  rule,  and 
providing,  in  substance,  that  conveyances  to  two  or  more  persons 
shall  create  tenancies  in  common,  and  not  joint  tenancies,  unless  it 
appears  that  it  was  the  intent  of  the  parties  to  create  joint  tenancies. 

In  Parsons  v.  Boyd,  20  Ala.  112,  the  court  said  (p.  118):  "Our 
statute,  it  is  true,  has  done  away  with  all  joint  tenancies,  as  known 
at  the  common  law,  and  declares  that  when  two  or  more  persons  shall 
hold  an  estate,  real  or  personal,  jointly,  and  one  joint  tenant  dies 
before  severance,  his  interest  in  the  joint  estate  shall  not  survive  to 
the  remaining  joint  tenant  or  joint  tenants,  but  shall  descend  to,  and 
be  vested  in,  his  heirs  or  other  legal  representatives,  in  the  same  man- 
ner as  if  his  mterest  had  been' severed  and  ascertained;  Clay's  Dig. 
169.  This  act,  however,  only  apphes  to  such  joint  tenants  as  hold  the 
absolute  property  in  their  own  right,  and  not  to  those  who  hold  as 
trustees  merely,  or  in  autre  droit.  The  evil  that  our  statute  intended 
to  remedy  was,  to  cut  off  the  jus  accrescendi,  or  right  of  survivorship, 
which  existed  at  the  common  law,  and  to  give  to  the  heirs  at  law  of 
joint  tenants  the  interest  of  their  ancestors,  in  the  same  manner  as 
if  they  had  held  as  tenants  in  common,  and  not  as  joint  tenants.  It 
was  thought  unreasonable  that  the  death  of  one  joint  tenant  should 
give  the  entire  estate  to  the  survivor  for  Ms  own  use,  to  the  exclusion 
of  the  heirs  or  next  of  kin  of  the  deceased  tenant.  But  when  the 
tenants  hold  as  trustees  for  particular  purposes,  or  in  autre  droit, 
and  can  gain  no  advantage  to  themselves  by  the  right  of  survivor- 
ship, then  they  are  not  within  the  reason  of  the  statute,  nor  does  the 
evil  exist  which  it  intended  to  remedy,  for  no  profit  or  benefit  will 
result  to  the  survivor,  and  although  he  take,  by  the  death  of  his 
co-tenant,  the  entire  legal  title,  yet  he  will  hold  it  as  trustee,  or  in 
the  right  of  another,  and  for  his  use  and  benefit.  Joint  trustees  are 
not  within  the  reason  of  the  statute,  nor  the  evil  intended  to  be 
remedied  by  it,  and  to  hold  that  their  joint  title  is  affected  by  the 
act,  could  be  productive  of  no  good;  it  could  avoid  no  evil,  but,  on 
the  contrary,  might  often  lead  to  protracted  litigation,  and  serious 
injury  to  the  trust  estate." 


BOLAND   V.   McKOWEN. 

189  Mass.  563.     1905. 

Contract  by  the  surviving  payee  of  a  note  made  to  the  plaintiff 
and  her  husband  Edward  J.  Boland  and  secured  by  a  mortgage  of 


4S2  BOLAND    V.    McKOWEN,  [cHAP.  Ill, 

real  estate,  to  recover  an  instalment  of  interest  due  on  the  note. 
Writ  dated  March  15,  1905. 

The  defendants  admitted  liability  and  paid  the  money  into  court, 
and  Edward  J.  Boland,  Jr.,  executor  under  the  will  of  the  plaintiff's 
late  husband,  intervened  as  a  claimant. 

In  the  Superior  Court  the  case  was  heard  on  an  agreed  statement 
of  facts.  The  petition  of  the  claimant  was  dismissed,  and  judgment 
was  ordered  for  the  plaintiff.   The  claimant  appealed. 

Knowlton,  C.J.  In  1894  certain  real  estate  was  conveyed  to 
Edward  J.  Boland  and  Agnes  Boland,  these  persons  being  husband 
and  wife.  In  1902  they  conveyed  the  property  to  Catherine  McKowen 
and  took  back  from  her,  on  the  same  day  and  as  a  part  of  the  same 
transaction,  a  mortgage  to  secure  a  part  of  the  purchase  money.  The 
mortgage  runs  to  "said  Edward  J.  Boland  and  Agnes  Boland  and 
their  heirs,"  etc.,  and  the  note  secured  by  it  is  payable  in  like  manner 
to  them  jointly.  Edward  J.  Boland  having  deceased,  and  the  note 
remaining  unpaid,  the  question  before  us  is  whether  his  widow, 
Agnes  Boland,  has  a  right  to  collect  it,  or  whether  the  executor  of 
the  husband's  will,  Edward  J.  Boland,  Jr.,  the  present  claimant,  is 
entitled  to  one  half  of  it.  The  estate  of  the  husband  is  ample  to  pay 
his  debts,  so  that  the  rights  of  creditors  are  not  involved. 

At  common  law  a  conveyance  to  two  or  more  persons,  without 
special  provisions,  created  an  estate  in  joint  tenancy  unless  these 
persons  were  husband  and  wife,  in  which  case  it  created  an  estate 
by  entirety,  which  differs  from  a  joint  tenancy  in  the  fact  that  the 
tenancy  cannot  be  severed  and  the  right  of  the  survivor  terminated 
by  either  party.  Shaw  v.  Hearsey,  5  Mass.  521;  Appleton  v.  Boyd, 
7  Mass.  131;  Wales  v.  Coffin,  13  Allen,  213;  Pray  v.  Stehbins,  141 
Mass.  219.  See  also  Pease  v.  Whitman,  182  Mass.  363;  McLaughlin 
V.  Rice,  185  Mass.  212.  By  the  St.  1785,  c.  62,  §  4,  the  common  law 
was  changed,  so  that  conveyances  to  two  or  more  persons  were  to 
be  interpreted  as  creating  estates  in  common,  unless  it  clearly  ap- 
peared from  the  language  that  estates  in  joint  tenancy  were  in- 
tended. It  was  held  in  the  cases  above  cited  that  this  statute  did  not 
apply  to  mortgages,  or  conveyances  to  husband  and  wife.  The  Rev. 
Sts.  c.  59,  §§  10,  11,  continue  this  statute  in  force,  with  an  expressed 
provision,  in  accordance  with  the  previous  decisions,  that  it  should 
not  "apply  to  mortgages,  nor  to  devises  or  conveyances  made  in 
trust,  or  made  to  husband  and  wife,"  and  the  provision  remained 
without  material  change  until  the  enactment  of  the  St.  1885,  c.  237. 
Gen.  Sts.  c.  89,  §§  13,  14;  Pub.  Sts.  c.  126,  §§  5,  6.  By  St.  1885, 
c.  237,  conveyances  to  husband  and  wife  are  included  in  the  provi- 
sions in  regard  to  conveyances  to  other  persons,  so  that  conveyances 
and  devises  to  husband  and  wife,  made  since  the  enactment,  do  not 
create  estates  by  entirety  unless  an  intention  to  create  such  an  es- 
tate is  expressed  in  the  writing.  But  in  this  as  in  the  former  statutes, 


CHAP.  III.]  CLERK    V.    CLERK.  483 

mortgages  are  excepted  from  the  provision,  and  these  are  left  to 
be  governed  by  the  rules  of  the  common  law. 

In  Pray  v.  Stebhins,  ubi  supra,  and  in  Phelps  v.  Simons,  159  Mass. 
415,  it  was  held  that  the  statutes  in  regard  to  the  separate  property 
and  separate  rights  of  married  women  do  not  affect  the  common  law 
in  regard  to  estates  by  entirety.  In  Draper  v.  Jackson,  16  Mass. 
480,  the  court  decided,  in  an  elaborate  opinion,  that  a  note  and  mort- 
gage made  to  husband  and  wife  go  to  the  wife,  if  she  survives  her 
husband,  and  not  to  the  executor  of  the  husband.  As  a  general  prop- 
osition, this  is  the  law  to-day;  for  except  the  St.  1885,  c.  237,  just 
cited,  there  is  nothing  in  the  statutes  in  regard  to  married  women 
which  extends  or  limits  their  rights,  as  against  their  husbands,  in 
reference  to  property  held  under  deeds  or  contracts  running  to  them 
jointly.  As  at  the  common  law,  husband  and  wife  are  left  incapable 
of  making  ordinary  contracts  with  one  another. 

Although  this  case  presents  no  such  question  as  that  upon  which 
the  court  divided  in  Phelps  v.  Simons,  159  Mass.  415  (see  also  Draper 
v.  Jackson,  16  Mass.  480,  486),  the  discussion  in  that  case  recognized 
tenancies  or  ownership  by  entirety  in  personal  property  as  well  as 
in  real  estate.  This  view  of  the  court  is  sustained  by  the  cases  cited 
in  the  opinion.  ' 

Upon  the  facts  before  us  in  the  present  case,  we  are  of  opinion  that 
the  plaintiff  has  the  same  rights  as  she  would  have  had  if  the  com- 
mon law  had  remained  unchanged. 

Judgment  for  the  plaintiff  affirmed. 


CLERK  V.  CLERK. 

2  Vera.  323.     1694. 

Sir  Philip  Warwick  conveys  his  house  of  Frognall,  and  four 
farms  to  trustees  upon  trust,  that  his  sisters,  the  Lady  Turner,  and 
Arabella  Clerk,  might  cohabit  in  the  capital  house,  and  equally  di- 
vide the  rents  and  profits  of  the  four  farms  betwixt  them,  and  the 
whole  to  the  survivor  of  them.  Arabella  Clerk  in  her  lifetime  makes 
a  lease  of  her  moiety  to  her  daughter  for  eighty  years,  to  commence 
upon  her  decease,  if  the  Lady  Turner  should  so  long  live,  and  soon 
after  dies. 

First,  it  was  resolved,  that  this  was  a  joint-estate,  and  not  a  ten- 
ancy in  common;  for  although  the  words  (equally  to  be  divided  be- 
twixt them)  sometimes  in  a  will  may  make  a  tenancy  in  common 
only  by  way  of  construction,  and  that  it  was  the  intent  of  the  testa- 
tor that  there  should  be  a  division  or  partition;  yet  if  afterwards  in 
the  will  it  is  declared,  as  in  this  case,  it  should  go  to  the  survivor, 
that  would  oust  such  construction,  and  it  would  be  a  joint-estate, 
even  in  the  case  of  a  devise  by  will. 


484  IN    RE    WILFORd's    estate.  [chap.  III. 

Secondly,  taking  it  to  be  a  joint-estate,  the  lease  made  by  Ara- 
bella, tho'  to  commence  after  her  decease,  is  a  severance  of  the  joint- 
tenancy;  and  the  lease  of  her  moiety  will  be  good  against  the  survivor. 


In  re  WILFORD'S   ESTATE. 

L.  R.  11  Ch.  D.  267.     1879. 

Two  sisters,  C.  E.  Wilford  and  H.  J.  Wilford,  resided  together, 
and  they  were,  with  other  property,  entitled,  as  joint  tenants  under 
the  will  of  Mrs.  Clarke,  to  certain  leasehold  houses.  The  solicitors, 
who  acted  for  the  sisters  in  matters  of  business,  did  not  keep  sep- 
arate accounts  of  the  moneys  which  belonged  to  each,  as  they  had 
a  joint  purse.  In  1866  some  of  the  leasehold  houses  were  sold,  and 
the  moneys  received  were,  with  other  moneys  contributed  b}'  the 
sisters,  lent  upon  mortgage  on  their  joint  account.  The  loan  was 
paid  off  in  January,  1877,  to  H.  J.  Wilford. 

On  the  5th  of  June,  1861,  the  sisters  made  their  wills,  and  thereby 
each  gave  her  property  to  the  other  absolutely',  and  appointed  her 
sole  executrix. 

On  the  10th  of  September,  1872,  each  sister  made  a  will  giving  her 
real  and  personal  estate  to  the  other  for  hfe,  and  after  her  death 
subject  to  certain  legacies  to  certain  nieces  in  equal  shares,  the  terms 
of  the  will  being  identical  except  in  the  interchange  of  the  donees 
for  We. 

Mr.  Taylor,  a  nephew,  and  one  of  the  trustees  named  in  both  wills, 
deposed  that  he,  on  the  22nd  of  August,  was  present  with  his  aunts 
by  appointment,  and  that  they  stated  that  it  was  the  intention  of 
each  of  them  to  make  a  will  in  favour  of  the  other,  so  that  the  sur- 
vivor should  have  the  whole  of  the  property  which  had  been  be- 
queathed to  them  by  Mrs.  Clarke,  i.e.,  they  agreed  to  divide  it 
equally  between  them  in  this  way:  that  the  survivor  should  have  the 
income  for  life,  and  that  after  her  decease  the  property  should  go  to 
certain  persons  to  whom  they  had  agreed  it  should  be  bequeathed; 
that  that  understanding  was  definitely  arranged  bj'  them  in  his 
presenc-e,  and  that  at  another  interview  on  the  11th  of  September, 
1872,  they  told  him  that  each  had  made  a  will  to  carry  out  the  ar- 
rangement. After  the  death  of  C.  E.  Wilford,  which  occurred  on  the 
17th  of  November,  1873,  H.  J.  Wilford  made  a  will  on  the  1st  of 
March,  1876,  and  disposed  of  her  property  in  a  manner  different 
from  the  bequest  in  her  will  of  1872,  and  thereby  she  gave  it  to  the 
children  of  her  nephew,  F.  Taylor,  who  should  be  living  at  her  death, 
in  equal  shares.  H.  J.  Wilford  having  died,  an  action  was  brought 
for  the  administration  of  the  estate  of  C.  E.  Wilford.  Judgment  was 
given  in  the  action  in  July,  1878,  and  certain  accounts  and  inquiries 


CHAP.  III.]  KENT,    COMMENTARIES.  485 

ordered  to  be  taken  and  made.  Two  of  the  residuary  legatees  under 
the  will  of  H.  J.  Wilford  had  obtained  leave  to  attend  the  proceed- 
ings in  the  action,  and  on  their  behalf  it  was  contended  that  H.  J. 
Wilford  became  absolutely  entitled  as  survivor  to  her  sister's  moiety 
of  the  property  under  Mrs.  Clarke's  will,  on  the  ground  that  there 
had  been  no  severance  of  the  joint  tenancy  in  it  by  the  transactions 
which  had  taken  place. 

This  was  a  summons  taken  out  by  the  plaintiffs,  asking  that  the 
accounts  and  inquiries  might  be  taken  and  made  on  the  footing  that 
there  had  been  a  severance  of  the  joint  tenancy  in  the  property. 

Hall,  V.C.  I  am  of  opinion  that  there  was  a  severance  of  the 
joint  tenancy  in  this  property  by  the  transaction  which  H.  J.  Wilford 
carried  out  with  her  sister  in  1872.  The  case  is  a  peculiar  one,  no 
case  that  I  am  aware  of  having  occurred  before  in  which  the  question 
has  arisen  from  a  transaction  like  this.  The  joint  tenants  agreed 
to  make  mutual  wills.  Before  that  they  made  wills  by  which  they 
gave  their  property  to  each  other  absolutely,  but  in  1872  they  agreed 
to  make  wills  under  which  the  survivor  should  take  the  property  for 
her  life  only,  and  after  her  decease  that  it  should  be  held  for  the  bene- 
fit of  certain  nieces  of  each  of  them.  That  agreement,  which  was  a 
deahng  by  each  of  the  sisters  with  her  moiety  of  the  joint  property, 
h  proved  by  Mr.  Taylor's  e\ddence.  It  was  acted  upon  by  both  sis- 
ters, their  wills  being  made  in  accordance  with  it,  and  it  effected, 
•n  my  opinion,  a  severance  of  the  joint  tenancy.  It  would  be  a  mon- 
strous thing  to  hold,  after  the  agreement  had  been  so  far  perfected, 
that  after  the  death  of  one  sister  the  other  could  claim  the  joint 
property  as  belonging  absolutely  to  her  as  survivor.  There  appears 
to  me  to  be  ample  evidence  of  the  agi-eement  and  of  part  performance 
of  it,  and  I  hold  that  the  parties  who  claim  under  the  will  of  C.  E. 
Wilford  are  entitled  to  have  the  property  administered,  on  the  foot- 
ing that  the  transaction  of  the  sisters  created  a  tenancy  in  common. 


KENT,  COMMENTARIES. 

Vol.  IV,  p.  367. 

By  the  New  York  Revised  Statutes,  persons  who  take  by  descent 
under  the  statute,  if  there  be  more  than  one  person  entitled,  take  as 
tenants  in  common,  in  proportion  to  their  respective  rights;  and  it 
is  only  in  very  remote  cases,  which  can  scarcely  ever  arise,  that  the 
rules  of  the  common-law  doctrine  of  descent  can  apply.  As  estates 
descend  in  every  state  to  all  the  children  equally,  there  is  no  sub- 
stantial difference  left  between  coparceners  and  tenants  in  common. 
The  title  inherited  by  more  persons  than  one,  is,  in  some  of  the  states, 
expressly  declared  to  be  tenancy  in  common,  as  in  New  York  and 


486  KENT,    COMMENTARIES.  [CHAP.  IH. 

New  Jersey:  and  where  it  is  not  so  declared,  the  effect  is  the  same; 
and  the  technical  distinction  between  coparcenary  and  estates  in 
common  may  be  considered  as  essentially  extinguished  in  the  United 
States. 

Note.  —  But  see  Giljnn  v.  Hollingsworth,  3  Md.  190. 


CHAP.  rV.]  KING    V.    DUNHAM.  487 


CHAPTER  IV. 

REVERSIONS,  RIGHTS  OF  ENTRY  FOR  CONDITION 
BROKEN,  VESTED  AND  CONTINGENT  REMAINDERS. 
HEREIN  OF  THE  RULE  IN  SHELLEY'S  CASE. 


COKE  UPON  LITTLETON,  22  b. 

A  REVERSION  is  where  the  residue  of  the  estate  always  doth  con- 
tinue in  him  that  made  the  particular  estate,  or  where  the  particular 
estate  is  derived  out  of  his  estate,  as  here.  [Littleton  said  (§  19): 
"  In  every  gift  in  tail  without  mqre  sajong  the  reversion  of  the  fee 
simple  is  in  the  donor."]  Tenant  in  fee  simple  maketh  gift  in  tail, 
so  it  is  of  a  lease  for  life  or  for  years.  .  .  . 

If  a  man  make  a  gift  in  tail,  or  a  lease  for  life,  the  remainder  to 
his  own  right  heirs,  this  remainder  is  void,  and  he  hath  the  reversion 
in  him. 

Note.  —  There  may  be  a  reversion  in  an  estate,  less  than  a  fee 
simple.  Thus  if  tenant  for  life  makes  a  lease  for  years,  no  matter 
how  long  such  term  of  years  may  be  (see  Earl  of  Derby  v.  Taylor, 
1  East  502),  or  if  tenant  for  years  makes  a  sublease. 


KING   V.   DUNHAM. 

31  Ga.  743.     1861. 

Jenkins,  J.  Complainants  seek  by  their  bill  to  set  aside  a  decree 
rendered  in  a  former  suit  in  Chancery  (which  they  attach  as  an  ex- 
hibit), reforming  the  marriage  settlement  of  Thomas  K.  Dunham  and 
Sarah  A.,  his  wife  (formerly  Anderson),  to  which  they  were  not  parties. 
They  claim  to  have  had  under  the  original  settlement  an  interest, 
which  was  divested  by  the  decree  reforming  it.  They  allege,  that  not 
having  been  parties  to  that  suit,  they  are  not  bound  by  the  decree, 
and  this  is  undoubtedly  true.  But  there  is  a  preliminary  question 
which  must  be  determined  in  their  favor  before  their  right  to  im- 
peach the  former  decree  can  be  recognized,  viz. :  whether  they  had  a 
vested  interest  under  the  marriage  settlement  anterior  to  its  refor- 
mation. By  the  terms  of  the  settlement  the  property  was  settled 
to  the  use  of  the  parties  to  the  marriage  during  their  joint  lives,  then 


488  KING   V.    DUNHAM.  [CHAP.  IV, 

to  the  use  of  the  survivor,  then  to  the  issue  of  the  marriage,  his,  her, 
or  their  heirs  and  assigns,  if  such  there  be,  and  in  default  of  such  is- 
sue, to  the  "heirs  of  the  wife,  (the  property  being  hers,)  the  prop- 
erty reverting  back  after  the  death  of  the  survivor  to  the  heirs  of 
Sarah  Anderson,  their  heirs,  executors,  administrators  and  assigns, 
and  not  the  heirs  of  the  said  Thomas  K.  Dunham."  It  is  under  the 
last  clause  that  complainants  claim  to  take  as  purchasers.  If  they 
did  so  take  upon  the  execution  of  the  marriage  settlement,  the  sub- 
sequent decree  reforming  it  did  infringe  their  vested  rights,  and  they 
are  entitled  to  be  heard  now,  in  opposition  to  the  validity  of  that 
decree,  but  not  otherwise. 

After  the  tennination  of  the  life-estates  ereated  by  the  settlement, 
and  on  failure  of  issue  of  the  marriage,  the  remainder  was  limited 
to  the  heirs  of  the  grantor.  To  enable  the  plaintiffs  in  error  to  take  as 
purchasers  these  words,  "the  heirs  of  Sarah  Anderson,"  must'appear 
to  be  descriptive  of  certain  persons  to  the  exclusion  of  all  others. 
Had  the  grantor  used  the  words,  "to  the  heirs  of  said  Sarah  A.  now 
living,"  or  "to  such  persons  as  would  be  the  heirs  of  the  said  Sarah 
A.  were  she  now  dead,"  then  the  words  would  be  descriptio  person- 
arum,  and  those  answering  that  description  would  have  taken  as 
purchasers.  There  must  be  some  words  amounting  to  a  description 
of  a  person,  or  of  persons,  or  something  in  the  context  clearly  indi- 
cating that  the  remainder,  so  created,  shall  vest.  1st  Feame  on  Rem's, 
208.  Where  the  word  "heirs"  only  is  used,  it  must  be  taken  in  its 
most  general  sense,  as  referring  to  those  persons  who,  upon  the  death 
of  the  grantor  (in  this  case),  would  be  her  heirs.  "A^'emo  est  heres 
viveyitis,"  and  where  the  tenn  is  used  in  this  general  sense,  the  iden- 
tification of  those  to  take  upon  the  happening  of  the  contingency, 
is  necessarily  postponed  to  the  death  of  that  person,  as  whose  heirs 
they  are  to  take.  In  this  view,  had  the  plaintiffs  in  error  died  before 
the  grantor,  they  of  course  could  not  have  taken,  nor  could  their 
heirs  through  them. 

Again,  had  the  grantor  survived  her  husband,  Dunham  (there 
being  no  children  of  this  marriage),  and  then  married  again,  not  hav- 
ing survived  her  second  husband,  had  then  died,  leaving  children  of 
the  second  marriage,  and  the  plaintiffs  in  error  surviving  her,  the 
latter  could  not  have  taken,  because  the  children  of  the  second  mar- 
riage having  intervened,  would  have  been  her  heirs  to  their  exclusion. 
Then  it  is  clear  that  no  interest  vested  in  them. 

But  to  escape  this  conclusion,  we  are  called  upon  to  hold,  that  the 
words  "heirs  of  Sarah  A.  Anderson"  in  this  deed,  mean  such  persons 
as  would  be  her  heirs  should  she  die  that  instant  —  mean  heirs  ap- 
parent or  presumptive.  If  there  be  any  law  for  such  construction 
we  are  not  aware  of  it. 

In  our  view  of  this  case,  there  is  no  necessity  to  resort  to  the  rule 
in  Shelley's  case,  which  has  been  pressed  upon  our  consideration;  and 


CHAP.  IV. J  LITTLETON,    TENURES.  489 

consequently,  the  very  able  and  learned  argument  of  counsel  for 
plaintiffs  in  error,  in  reply,  to  prove  that  it  cannot  be  brought  within 
that  rule,  does  not  control  the  case.  These  arguments  have  been 
highly  entertaining  and  instructive,  but  we  place  the  case  upon  an- 
other position  assumed  by  counsel  for  defendants  in  error,  viz:  ''A 
limitation  to  the  heirs  of  the  gi'antor  will  continue  in  himself  as 
the  reversion  in  fee."  Fearne  on  Remainders,  50  and  51;  Preston  on 
Estates,  291;  1  P.  WilHams,  359;  2d  Blackstone's  Com.  241,  note. 

Thus  considered,  the  reversion  took  effect  in  the  grantor  and  upon 
her  death  the  estate  would  have  passed  to  such  persons  as  then  be- 
came her  heirs  at  law;  but  as  it  could  not  be  known  who  those  per- 
sons would  be  until  her  death,  no  person  took  a  vested  interest  dur- 
ing her  life,  and  no  person  could  take,  under  that  clause,  any  interest 
whatever,  vested,  or  contingent,  as  purchasers. 

Had  that  clause  been  omitted  entirely  upon  the  happening  of  the 
specified  contingency,  the  estate  would  have  reverted,  and  would 
have  passed  to  those  whose  heirship  to  the  grantor  was  estabUshed 
by  her  death. 

The  deed  does  no  more  than  specify  the  course  to  be  taken  by  the 
estate,  which  it  would  have  taken  by  law,  without  the  specification. 

In  this  view,  Mrs.  Dunham  had  a  perfect  right  to  consent  to  the 
proposed  reformation  of  the  settlement;  and  the  decree,  maldng  that 
reformation  with  her  consent,  divested  no  pre-existing  rights. 

We  affiim  the  judgment  of  the  court  sustaining  the  demurrer. 


LITTLETON,  TENURES. 
§§  325,  326,  347. 

Estates  which  men  have  in  lands  or  tenements  upon  condition  are 
of  two  sorts,  viz.  either  they  have  estate  upon  condition  in  deed,  or 
upon  condition  in  law,  etc.  Upon  condition  in  deed  is,  as  if  a  man  by 
deed  indented  enfeoffs  another  in  fee  simple,  reserving  to  him  and  his 
heirs  yearly  a  certain  rent,  payable  at  one  feast  or  divers  feasts  per 
annum,  on  condition  that  if  the  rent  be  behind,  etc.,  that  it  shall  be 
lawful  for  the  feoffor  and  his  heirs  into  the  same  lands  or  tenements 
to  enter,  etc.  And  if  it  happen  the  rent  to  be  behind  by  a  week  after 
any  day  of  payment  of  it,  or  by  a  month  after  any  day  of  payment 
of  it,  or  by  half  a  year,  etc.,  that  then  it  shall  be  lawful  to  the  feoffor 
and  his  heirs  to  enter,  etc.  In  these  cases,  if  the  rent  be  not  paid  at 
such  time,  or  before  such  time  limited  and  specified  within  the  condi- 
tion comprised  in  the  indenture,  then  ma}^  the  feoffor  or  his  heirs 
enter  into  such  lands  or  tenements,  and  them  in  his  former  estate  to 
have  and  hold,  and  the  feoffee  quite  to  oust  thereof.  And  it  is  called 
an  estate  upon  condition,  because  that  the  estate  of  the  feoffee  is 
defeasible,  if  the  condition  be  not  performed,  etc. 


490  WINN    V.    STATE.  [CHAP.  IV. 

In  the  same  manner  it  is,  if  lands  be  given  in  tail,  or  let  for  term 
of  life  or  of  years,  upon  condition,  etc. 

The  second  thing  is,  that  no  entry  nor  re-entry  (which  is  all  one) 
may  be  reserved  or  given  to  any  person,  but  only  to  the  feoffor,  or  to 
the  donor,  or  to  the  lessor,  or  to  their  heirs:  and  such  re-entry  caimot 
be  given  to  any  other  person. 


WINN   V.   STATE. 

55  Ark.  360.     1892. 

Hughes,  J.  This  is  an  appeal  from  a  judgment  of  the  Pope  circuit 
court,  convicting  appellant  of  a  violation  of  section  1808  of  Mans- 
field's Digest,  which  is  as  follows: 

"  Every  person  who  shall  take  or  keep  possession  of  any  real  estate 
by  actual  force  or  violence,  without  the  authority  of  law,  or  who, 
being  armed  with  a  deadh'  or  dangerous  weapon,  shall  by  violence  to 
any  person  entitled  to  the  possession,  or  bj'  putting  in  fear  of  imme- 
diate danger  to  his  person,  obtain  or  keep  possession  of  any  such  real 
estate  or  property  without  legal  authority,  shall,  on  con\4ction,  be 
adjudged  guilty  of  a  misdemeanor  and  be  fined  not  less  than  fifty 
dollars  and  be  imprisoned  not  exceeding  one  year." 

D.  F.  Moore  and  R.  L.  Davis  held  possession  of  the  real  estate 
described  in  the  indictment  by  virtue  of  a  lease  executed  by  the 
appellant,  C.  M.  Winn.  The  lease  was  read  in  evidence,  and  was  as 
follows : 

"This  indenture,  made  this  27th  day  of  December,  a.d.,  1887,  by 
and  between  C.  M.  Wimi,  and  D.  F.  Moore  and  R.  L.  Davis,  Wit- 
nesseth:  That  the  said  C.  M.  Winn  hereby  leases  unto  said  D.  F. 
Moore  and  R.  L.  Davis,  the  following  described  piece  of  land,  to 
wit: 

"To  hold  for  the  term  of  six  years  from  date;  said  lease  expiring 
on  the  27th  day  of  December,  a.d.,  1893.  And  the  said  D.  F.  Moore 
and  R.  L.  Davis,  for  themselves,  their  executors  and  administrators, 
do  hereby  covenant  to  and  with  the  said  C.  M.  Wiim,  his  heirs  and 
assigns,  that  they  will  dig  a  ditch  the  entire  length  of  said  piece  of 
ground,  extending  along  its  north  line,  5aid  ditch  to  be  eighteen 
inches  wide  at  top,  twelve  inches  wide  at  bottom  and  eighteen  inches 
deep.  That  they  will  have  said  land  cleared  and  ditch  dug  by  the 
middle  of  the  second  year  of  the  term  of  lease;  that  they  will  build  a 
lawful  fence  around  said  land,  and  keep  the  said  fence  in  good  repaii 
during  the  time  of  said  lease;  and  in  case  they  fail  to  comply  with 
any  of  the  foregoing  stipulations,  they  agree  to  forfeit  said  lease. 
Said  C.  M.  Winn  also  hereby  leases  unto  the  said  D.  F.  Moore  and 


I 


CHAP.  IV.]  ■V^^NN    V.    STATE.  491 

R.  L.  Davis  the  following  described  piece  of  land,  to  wit:  ...  To  hold 
for  the  term  of  four  years  from  this  date,  said  lease  expiring  the  27th 
day  of  December,  1891.  And  the  said  D.  F.  ]Moore  and  R.  L.  Davis, 
for  themselves,  their  executors  and  administrators,  do  hereby  cove- 
nant, to  and  with  the  said  C.  M.  Winn,  his  heirs  and  assigns,  that 
they  will  enclose  said  piece  of  land  with  a  lawful  fence,  and  have  said 
land  in  cultivation  by  the  close  of  the  first  year  of  lease;  and  that  they 
will  keep  said  fence  in  good  repair  until  the  close  or  expiration  of 
said  lease;  and  if  they  fail  to  comply  with  any  of  the  above  stipula- 
tions, they  hereby  agree  to  forfeit  said  lease. 

"In  testimony  whereof,  we  have  hereunto  set  our  hands,  this  28th 
day  of  December,  1887. 

"Witness:  "C.  M.  Winn, 

"L.  Russell.  "D.  F.  Moore. 

"R.L.Davis." 

Moore  and  Davis  entered  upon  the  land  under  the  above  lease, 
and  remained  in  possession  during  the  years  1888  and  1889,  and 
until  they  were  dispossessed  by  appellant.  On  the  5th  day  of  Febru- 
ary, 1890,  they  were  served  with  a  notice  from  appellant,  declaring 
the  lease  forfeited,  and  prohibiting  their  going  on  the  land  in  the 
future.  A  month  afterwards,  appellant,  in  the  absence  of  his  lessees, 
re-entered  upon  the  land;  and  when  Moore  and  his  brother,  to  whom 
Davis  had  assigned  his  interest  under  the  lease,  attempted  to  come 
upon  the  premises,  he  prevented  their  so  doing  by  threatening  to  kill 
them  with  a  gun,  with  which  he  had  armed  himself.  The  State  offered 
testimony  to  show  that  the  stipulations  in  the  lease  had  been  per- 
formed, and  that  therefore  there  was  no  forfeiture;  appellant  offered 
to  prove  that  the  stipulations  had  not  been  performed.  The  court 
refused  to  admit  this  testimony.  The  jury  returned  a  special  verdict, 
finding  that  the  defendant  held  the  land  by  force,  as  charged  in  the 
indictment.  JNIotions  in  arrest  and  for  a  new  trial  were  filed  and 
overruled,  exceptions  saved  and  appeal  taken. 

Were  the  stipulations  in  the  lease  that  Moore  was  to  make  im- 
provements as  therein  provided  by  a  specified  time  conditions  or 
covenants?  The  Jease  provides  that  if  the  lessees  "failed  to  comply 
with  any  of  its  stipulations,  they  hereby  agree  to  forfeit  said  lease." 
This  we  understand  and  construe  to  mean  that  if  the  lessees  failed  to 
comply  with  any  of  the  stipulations  of  the  lease  within  the  time 
therein  provided,  then  their  rights  thereunder  should  cease,  and  that 
they  would  surrender  possession  of  the  premises  to  the  appellant  on 
demand.  See  Post  v.  Weil,  115  N.Y.  366-69-70  and  71.  We  hold 
therefore  that  the  stipulations  were  conditions  and  not  covenants. 
Upon  the  breach  of  their  conditions  did  a  right  of  entry  accrue  to  the 
appellant?  If  he  was  the  owner  of  the  property,  he  had  a  right  to 
possession,  upon  breach  of  the  conditions  of  the  lease  under  which 
the  lessees  held.  Under  such  a  condition  he  was  certainly  entitled  to 


492  VAN    RENSSELAER    V.    BALL.  [CHAP.  IV. 

a  re-entry  for  condition  broken,  though  not  to  use  force  to  effect  the 
re-entry. 

He  used  no  force  but  took  possession  peaceably  in  the  absence  of  the 
tenants  from  the  premises,  and  if  he  had  the  lawful  right  to  posses- 
sion peaceably  acquired,  he  had  the  right  to  protect  his  possession  by 
force,  if  necessary,  as  well  against  his  former  tenants  as  any  one  else 
proposing  to  take  possession  without  right.  A  clearer  case  of  a  land- 
lord's right  to  use  force  can  scarcely  be  stated  than  where  a  legal 
possession  has  been  gained,  and  force  is  only  employed  to  defend  it. 
This  is  an  undisputed  right,  accordmg  to  a  practically  mianimous 
opinion  wherever  the  question  has  arisen.  4  Am.  Law  Rev.  439.  It 
is  held  in  Vermont  that  "if  one  have  the  right  to  enter  and  take  pos- 
session of  premises  in  the  occupancy  of  another,  his  entry  will  be 
legal  and  not  contrary  to  the  statute  concerning  forcible  entry  and 
detainer,  if  made  while  the  other  party  is  temporaril}^  absent  from 
the  premises,  leaving  no  one  there."  Mussey  v.  Scott,  32  Vt.  82. 

It  follows  that  the  testimony  excluded  by  the  court  as  to  the  per- 
formance or  non-performance  by  the  lessees  of  the  appellant  of  the 
stipulations  in  the  lease  in  reference  to  improvements  was  material 
and  necessary  to  enable  the  jury  to  determine  whether  appellant's 
entry  was  a  lawful  entry.  This  question  should  have  been  determined 
by  the  jury  upon  evidence. 

For  the  error  committed  in  the  exclusion  of  this  testimony  the 
cause  is  remanded  for  a  new  trial. 


VAN  RENSSELAER  v.  BALL. 

19  N.Y.  100.     1859. 

Action  in  the  nature  of  ejectment,  brought  to  recover  the  posses- 
sion of  one  hundred  and  twenty-one  and  a  half  acres  of  land  in  the 
town  of  Berne,  in  the  county  of  Albany,  tried  before  Mr.  Justice 
W.  F.  Allen,  without  a  jury,  in  January,  1857. 

The  plaintiff  gave  in  evidence  an  indenture  executed  by  Stephen 
Van  Rensselaer,  the  elder,  now  deceased,  and  William  Ball,  dated 
October  20th,  1792,  by  which  the  former  conveyed  to  Ball  the  prem- 
ises in  question,  in  fee,  reserving  an  annual  rent,  payable  in  wheat 
and  fowls,  and  in  a  day's  service  each  year.  The  indenture  contains 
a  covenant  for  the  pa^nnent  of  rent,  and  clauses  of  distress  and  for 
re-entry,  in  all  respects  like  those  contained  in  the  conveyance  given 
in  evidence  in  the  case  of  Va7i  Rensselaer  v.  Hays,  19  N.Y.  68.  It 
was  proved  that  W.  Ball,  the  grantee,  died  about  twelve  or  fourteen 
years  before  the  trial,  and  that  the  defendant,  his  son,  was  in  posses- 
sion of  a  part  of  the  premises,  which  was  described  in  the  testimony, 
having  entered  under  his  father.   The  defendant  had  paid  rent  for 


CHAP.  IV.]  DOE    V.    BATEMAN.  493 

his  father  during  his  lifetime;  but  it  did  not  appear  that  any  rent 
had  been  paid  since  his  death. 

Denio,  J.  A  condition  annexed  to  a  conveyance  in  fee  that  tha 
grantee,  his  heirs  and  assigns  shall  pay  to  the  grantor  and  his  heirs 
an  annual  rent,  and  that  in  default  of  payment  the  grantor  or  his 
heirs  may  re-enter,  is  a  lawful  condition.  Littleton  puts  it  as  an 
example  of  a  condition  in  deed,  at  the  commencement  of  that  part 
of  his  treatise  which  relates  to  estates  upon  condition.  Such  an  es- 
tate, he  says,  "is  as  if  a  man  by  deed  indented  enfeoffs  another  in 
fee  simple,  reserving  to  him  and  his  heirs,  yearly,  a  certain  rent  pay- 
able at  one  feast  or  divers  feasts,  per  annum,  on  condition  that  if 
the  rent  be  behind,  etc.,  that  it  shall  be  lawful  for  the  feoffor  and 
his  heirs  to  enter,  etc.,  and  if  it  happen  the  rent  to  be  behind  by  a 
week  after  any  day  of  payment  of  it,  or  by  a  month  after  any  day 
of  payment  of  it,  or  by  half  a  year,  etc.,  that  then  it  shall  be  lawful 
for  the  feoffor,  or  his  heirs  to  enter,  etc.  In  these  cases,  if  the  rent 
be  not  paid  at  such  time,  or  before  such  time  limjted  and  specified 
within  the  condition  comprised  in  the  indenture,  then  may  the  feoffor 
or  his  heirs  enter  into  such  lands  or  tenements,  and  them  of  his  for- 
mer estate,  io  have  and  hold,  and  the  feoffee  quite  to  oust  thereof. 
And  it  is  called  an  estate  upon  condition,  because  that  the  estate 
of  the  feoffee  is  defeasible,  if  the  condition  be  not  performed,"  etc. 
(§  325.)  The  systematic  writers  upon  the  law  of  real  property,  from 
that  time  to  the  present,  have  assumed  the  legahty  of  such  conditions  ; 
and  the  substance  of  the  condition  in  the  conveyance  under  con- 
sideration is  usually  put  as  an  example.  2  Bl.  Com.  154;  Cruise's 
Dig.,  vol.  2,  ch.  1,  §  1,  pi.  3,  9;  4  Kent  Com.  123.  Among  the  numer- 
ous authorities  referred  to  by  the  defendant's  counsel,  I  have  been 
unable  to  find  a  single  dictum  or  the  slightest  hint  that  such  condi- 
tions were  contrary  to  law,  or  that  they  could  only  be  attached  to 
estates  for  life  or  years,  or  that  a  common-law  tenure  between  the 
parties,  or  a  reversion  in  the  grantors,  were  necessary  to  uphold 
them. 


DOE  V.  BATEMAN. 

2  B.  &  Aid.  168.     1818. 

Ejectment  for  two  messuages,  in  the  parish  of  St.  Luke,  Chelsea. 
The  demise  was  laid  on  the  26th  December,  1817.  The  cause  was 
tried  at  the  sittings  after  Easter  Term,  1818,  before  Abbott,  J., 
when  a  verdict  was  taken  for  the  plaintiff,  subject  to  the  opinion  of 
the  court,  on  a  case  which  stated  in  substance  as  follows:  The  de- 
fendant Bateman  being  possessed  of  a  term  of  years  in  the  premises 
in  question,  by  a  lease  dated  12th  May,  1812,  demised  the  premises 


494  DOE   V.    BATEMAN.  [CHAP.  IV. 

to  Freeman,  the  lessor  of  the  plaintiff,  for  a  term  co-extensive  with 
his  own  term,  reserving  rent,  and  subject  to  certain  conditions,  one 
of  which  was,  that  Freeman  should  not  open  a  public-house  on  the 
premises  without  the  hcence,  in  writing,  of  Bateman.  The  lease  con- 
tained the  usual  clause  for  re-entry  in  case  of  a  breach  of  any  of  the 
covenants  or  conditions.  Freeman  entered  into  the  premises,  and 
afterwards  opened  a  public-house  without  having  obtained  the 
licence  in  writing  of  Bateman;  and  the  latter  having  entered  for  the 
breach  of  this  condition,  this  ejectment  was  brought  by  Freeman  to 
recover  the  possession.  This  case  was  argued  by  Curwood  for  the 
plaintiff,  and  Taddy,  Serjt.,  for  the  defendant.  For  the  plaintiff  it 
was  contended,  that  the  defendant  having  parted  with  his  whole 
term,  had  no  reversion,  and  therefore  no  right  of  entry  for  the  con- 
dition broken;  that,  upon  assigning  his  whole  interest  to  the  plaintiff, 
the  privity  of  estate  was  destroyed,  and  that  a  right  of  entry  could 
not  be  reserved  to,  or  exist  in,  a  stranger.  On  the  other  side  it  was 
insisted,  that  the  condition  was  not  destroyed  by  the  defendant's 
having  granted  away  the  whole  reversion;  and  the  following  authori- 
ties were  cited :  Litt.  s.  347.  5  Vin.  Ab.  312.  pi.  17.  Bac.  Abr.  tit. 
Condition,  E.     Co.  Litt.  202  a. 

Cur.  adv.  vult. 
Abbott,  C.J.,  now  delivered  the  opinion  of  the  court.  This  case 
was  argued  before  us  at  Serjeants'  Irm,  and  upon  the  facts  found,  the 
single  question  of  law  was  this,  whether  a  lessee  for  years,  having 
made  a  conveyance  operating  as  an  assigiunent  of  his  whole  interest 
in  the  land,  containing  a  covenant  on  the  part  of  the  assignee  not  to 
open  a  public-house  on  the  demised  premises  without  licence,  and 
containing  also  a  clause  of  re-entry  on  breach  of  the  covenant,  could 
upon  an  actual  breach  thereof  enter  upon  the  land  and  avoid  his 
conveyance.  Or,  in  other  words,  whether,  if  an  assignment  of  a  term 
of  years  be  made  upon  a  condition,  the  assignment  shall  be  absolute 
and  the  condition  void.  No  question  arose  as  to  the  capacity  of  a 
real  or  personal  representative  to  make  the  entry;  for  the  entry  was 
made  by  the  assignor  himself.  The  only  argument  adduced  against 
the  right  of  entry  or  validity  of  the  condition  was,  that  an  entry 
must  always  be  made  by  a  person  entitled  to  the  reversion,  and  by 
no  other;  and  consequently  that  as  the  original  termor  had  in  this 
case,  by  the  deed  of  assignment,  parted  with  his  whole  estate,  and 
no  reversion  was  left  to  him,  he  could  not  enter.  And,  to  be  sure,  if 
the  premises  here  assumed  be  true,  the  conclusion  is  properly  drawn. 
But  we  think  the  premises  from  which  the  conclusion  was  drawn 
are  untrue.  And  that  they  are  untrue  is  manifest  from  the  familiar 
case  put  in  Lit.  sect.  325,  of  a  feoffment  in  fee  rendering  rent,  with 
a  clause  of  re-entry,  if  the  rent  be  unpaid;  in  which  case  it  is  said 
the  feoffor  or  his  heirs  may  enter  for  the  condition  broken.  In  this 
case,  the  feoffor  has  no  reversion;  the  lands  are  not,  nor  since  the 


CHAP.  IV.]      RICE  V.  BOSTON  &  WORCESTER  R.R.  CORPORATION.        495 

Statute  of  Quia  Emptores,  can  be  holden  of  him,  but  must  be  holden 
of  the  superior  lord  of  the  fee.  Another  instance  is  also  mentioned 
in  Lord  Coke's  commentary  upon  this  section,  Co.  Lit.  fo.  202.  Ac- 
cording to  the  text  of  Littleton,  the  party  making  tlie  entrj^  shall 
have  and  hold  the  land  in  his  former  estate;  but  according  to  the 
commentary,  although  this  is  regularly  true,  yet  it  faileth  in  many 
cases,  and  one  of  the  cases  of  failure  is  that  of  a  feoffment  in  fee  upon 
condition,  made  by  a  man  seised  in  right  of  his  wife.  The  feoffor 
dieth,  and  the  condition  is  broken.  The  heir  of  the  feoffor  shall  enter; 
yet  the  heir  at  the  time  of  his  entry  hath  no  reversion,  and  after  the 
entry  his  estate  doth  vanish,  and  presently  the  estate  is  vested  in  the 
wife.  For  these  reasons,  we  think  the  defendant  was  entitled  to  the 
verdict,  and  the  postea  must  be  delivered  to  him. 

Judgment  for  defendant. 


RICE  V.  BOSTON  &  WORCESTER  RAILROAD 
CORPORATION. 

12  All.  (Mass.)  141.     1866. 

Writ  of  entry  to  recover  a  parcel  of  land  in  Brighton. 

At  the  trial  in  the  superior  court,  before  Vose,  J.,  it  appeared 
that  on  the  12th  day  of  INIay,  1834,  the  demandant's  fat  her  conveyed 
the  demanded  premises  to  the  tenants  bj'  a  deed  of  warranty,  which 
stated  that  the  conveyance  was  made  upon  the  express  condition 
that  the  corporation  should  forever  maintain  and  keep  in  good 
repair  a  pass-way  over  the  same,  and  also  certain  fences;  the  premises 
being  land  over  which  the  railroad  of  the  tenants  passes.  The  de- 
mandant's father  then,  in  June,  1842,  conveyed  to  the  demandant  a 
large  tract  of  land,  the  description  of  which  included  the  demanded 
premises,  by  a  deed  of  warranty;  and  died  intestate,  before  any 
breach  of  condition.  The  demandant  offered  e\'idence  of  a  breach  of 
condition  after  his  father's  death.  No  entry  for  breach  of  "condition 
was  made  before  bringing  this  action.  The  judge  excluded  the 
offered  e\ddence,  and  instructed  the  jury  that  the  demandant  Was 
not  entitled  to  recover;  and  a  verdict  v/as  accordingly  returned  for 
the  tenants.   The  demandant  alleged  exceptions.  r 

BiGELow,  C.J.  It  is  one  of  the  established  rules  of  the  common 
law  that  the  right  or  possibility  of  reverter  which  belongs  to  a  grantor 
of  an  estate  on  condition  subsequent  cannot  be  legally  convej^ed  by 
deed  to  a  third  person  before  entry  for  a  breach.  This  rule  is  stated 
in  Co.  Litt.  214  a,  in  these  words:  "Nothing  in  action,  entry  or  re- 
entry can  be  granted  over;"  and  the  reason  given  is  "for  avoiding  of 
maintenance,  suppressing  of  rights  and  stirring  up  of  suits,"  which 
would  happen  ifmdn  were  permitted  "to  grant 'before  they  be  in 


49G        EICE  V.  BOSTON  &  WORCESTER  R.R.  CORPORATION.      [CHAP.  IV. 

possession."  This  ancient  doctrine  had  its  origin  in  the  early  stat- 
utes against  maintenance  and  champerty  in  England,  the  last  of 
which,  32  Henry  VIII.  c.  9,  expressly  prohibited  the  granting  or 
taking  any  such  right  or  interest  under  penalty,  both  on  the  grantor 
and  the  buyer  or  taker,  of  forfeiting  the  whole  value  of  the  land  or 
interest  granted,  or,  as  Coke  expresses  it,  "the  grantor  and  grantee 
(albeit  the  grant  be  merely  void)  are  within  the  danger  of  the 
statute."  Co.  Litt.  369  a.  The  principle  that  a  mere  right  of  entry 
into  land  is  not  the  subject  of  a  valid  grant  has  been  fully  recognized 
and  adopted  in  this  country  as  a  settled  rule  of  the  law  of  real  prop- 
erty, both  by  text  writers  and  courts  of  justice.  2  Cruise  Dig. 
(Greenl.  ed.)  tit.  xiii.  c.  1,  §  15.  1  Washburn  on  Real  Prop.  453;  2 
lb.  599.  1  Smith's  Lead.  Cas.  (5th  ed.)  113.  Nicoll  v.  New  York 
&  Erie  Railroad,  2  Keman,  133.  Williams  v.  Jackson,  5  Johns.  498. 
Hooper  v.  Cummings,  45  Maine  359.  Guild  v.  Richards,  16  Gray. 

The  effect  of  a  grant  of  a  right  or  possibility  of  reverter  of  an  estate 
on  condition  is  thus  stated  in  1  Shep.  Touchstone,  157,  158:  A  condi- 
ion  "may  be  discharged  by  matter  ex  post  facto;  as  in  the  examples 
following.  If  one  make  a  feoffment  in  fee  of  land  upon  condition,  and 
after,  and  before  the  condition  broken,  he  doth  make  an  absolute 
.'eoffment,  or  levy  a  fine  of  all  or  part  of  the  land,  to  the  feoffee,  or 
any  other;  by  this  the  condition  is  gone  and  discharged  forever."  So 
in  5  Vin.  Ab.  Condition,  (I.  d  11.)  the  rule  is  said  to  be,  "when  condi- 
tion is  once  annexed  to  a  particular  estate,  and  after  by  other  deed 
the  reversion  is  granted  by  the  maker  of  the  condition,  now  the  con- 
dition is  gone."  See  also  1  Washburn  on  Real  Prop.  453.  Hooper  v. 
Cummings,  45  Maine,  359.  The  original  maker  of  the  condition  can- 
not enforce  it  after  he  has  parted  with  his  right  of  reverter,  nor  can 
his  alienee  take  advantage  of  a  breach,  because  the  right  was  not 
assignable.  In  the  light  of  these  principles  and  authorities,  it  would 
seem  to  be  very  clear  that  the  original  grantor  of  the  demanded 
premises  destroyed  or  discharged  the  condition  annexed  to  his  grant 
to  the  defendants  by  aliening  the  estate  in  his  lifetime  and  before 
any  breach  of  the  condition  had  taken  place. 

The  only  doubt  which  has  existed  in  our  minds  on  this  point  arises 
from  the  fact  that  the  son  and  heir  of  the  original  grantor  of  the 
premises  is  the  demandant  in  this  action.  But  on  consideration  we 
are  satisfied,  not  only  that  the  son  took  nothing  by  the  deed,  but  also 
that  the  possibility  of  reverter  was  extinguished  so  that  the  original 
grantor  had  no  right  of  entry  for  breach  after  his  deed  to  his  son,  and 
the  latter  can  make  no  valid  claim  to  the  demanded  premises  either 
as  grantee  or  as  heir  for  a  breach  of  the  condition  attached  to  the 
original  grant.  A  condition  in  a  grant  of  land  can  be  reserved  only 
to  the  grantor  and  his  heirs.  But  the  latter  can  take  only  by  virtue 
of  the  privity  which  exists  between  ancestor  and  heir.  This  privity  is 
essential  to  the  right  of  the  heir  to  enter.  But  if  the  original  grantor 


CHAP.  IV.]      RICE  V.  BOSTON  &  WORCESTER  R.R.  CORPORATION.        497 

aiienes  the  right  or  possibihty  in  his  lifetime  before  breach,  the 
privity  between  him  and  his  heirs  as  to  the  possibility  of  reverter  is 
broken.  No  one  can  claim  as  heir  until  the  decease  of  the  grantor, 
because  nemo  est  hoeres  vivenUs;  and  upon  his  death  his  heir  has  no 
right  of  entr}',  because  he  cannot  inherit  that  which  his  ancestor  had 
aliened  in  his  lifetime.  The  right  of  entry  is  gone  forever.  Perkins, 
§§  830-833.  Litt.  §  347. 

It  may  be  suggested,  however,  that  if  the  deed  is  void  and  conveys 
no  title  to  the  grantee,  the  right  of  entry  still  I'emains  in  the  grantor 
and  is  transmissible  to  his  heir.  This  argument  is  inconsistent  with 
the  authorities  alread}'  cited,  which  sanction  the  doctrine  that 
alienation  by  a  grantor  of  an  estate  on  condition  before  breach  ex- 
tinguishes the  condition;  it  also  loses  sight  of  the  principle  on  which 
the  doctrine  rests.  The  policy  of  the  law  is  to  discourage  mainten- 
ance and  champerty.  Neither  party  to  a  conveyance  which  violates 
the  rule  of  law  can  allege  his  o^ti  unlawful  act  for  the  purpose  of 
securing  an  advantage  to  himself.  The  gi-antor  of  a  right  of  entry 
carmot  be  heard  to  say  that  his  deed  was  void,  and  that  the  right  of 
entrj'  still  remains  in  him,  because  this  would  be  to  allow  him  to  set 
up  his  own  turpitude  in  engaging  in  a  champertous  transaction  as  the 
founda,tion  of  his  claim.  His  deed  is  therefore  effectual  to  estop  him 
from  setting  up  its  invaliditj^  as  the  ground  of  claiming  a  right  of 
entry  which  he  had  unlawfully  conveyed.  Nor  can  the  grantee  avail 
himself  of  the  grant  of  the  right  of  entiy  for  a  like  reason.  He  cannot 
be  permitted  to  set  up  a  title  which  rests  upon  a  conveyance  which 
he  has  taken  in  contravention  of  the  rules  of  law.  Both  parties  are 
therefore  cut  off  from  claiming  any  benefit  of  the  condition.  The 
grantor  cannot  aver  the  invalidity  of  his  owti  deed,  nor  can  the 
gi-antee  rely  on  its  validity.  Both  being  participators  in  an  unlawful 
transaction,  neither  can  avail  himself  of  it  to  establish  a  title  in  a 
court  of  law.  It  is  always  competent  for  a  party  in  a  writ  of  entry  to 
allege  that  a  deed,  under  which  an  adverse  title  is  claimed,  although 
duly  executed,  passed  no  title  to  the  grantee,  either  because  the 
grantor  was  disseised  at  the  time  of  its  execution,  or  because  the  deed 
for  some  other  reason  did  not  take  effect.  Steams  on  Real  Actions, 
226. 

We  know  of  no  statute  which  has  changed  the  rules  of  the  common 
law  in  this  commonwealth  in  relation  to  the  alienation  of  a  right  of 
entry  for  breach  of  a  condition  in  a  deed.  By  these  rules,  without 
considering  the  other  grounds  of  defence  insisted  upon  at  the  trial, 
it  is  apparent  that  the  demandant  cannot  recover  the  demanded 
premises;  not  as  heir,  because  he  did  not  inherit  that  which  his  father 
had  conveyed  in  his  lifetime;  nor  as  purchaser,  because  his  deed  was 
void. 

Exceptions  overruled. 


498  BENNETT   V.    MORRIS.  [CHAP.  IV. 

COKE  UPON  LITTLETON,  49  a. 

"The  remainder"  is  a  residue  of  an  estate  in  land  depending  upon 
a  particular  estate,  and  created  together  with  the  same,  and  in  law 
Latin  it  is  called  ^^remanere" 

Note.  —  If  A,  tenant  in  fee  simple  of  Blackacre,  gave  B  an  es- 
tate in  tail,  for  life,  or  for  years,  and  did  no  more,  the  reversion 
would  be  in  A.  But  the  common  law  permitted  A,  after  giving  the 
estate  to  B,  to  proceed  and  give  other  estates  to  other  persons,  — 
for  example,  A  might  give  B  an  estate  for  life,  C  an  estate  for  life, 
D  an  estate  for  life,  and  E  an  estate  in  fee.  The  estates  given  to  C, 
D,  and  E  were  remainders. 

The  common  law  did  not  permit  the  creation  of  any  future  estates 
in  favor  of  strangers,  except  remainders. 


FEARNE.  ON  CONTINGENT  REMAINDERS,  261. 

It  is  laid  down  as  a  rule  in  conveyances  at  common  law,  that  every 
remainder  must  be  so  limited  as  to  wait  for  the  determination  of  the 
particular  estate,  before  it  is  to  take  effect  in  possession;  and  not  to 
take  effect  in  prejudice  or  exclusion  of  the  preceding  estate.  This  rule 
not  only  flows  of  necessity  from  the  definition  of  a  remainder  .  .  . 
but  also  follows,  as  the  consequence  of  a  maxim  at  common  law, 
that  none  shall  take  advantage  of  a  condition,  but  the  party  from 
whom  the  condition  moves  (i.e.,  the  grantor)  and  his  heirs.  .  .  . 

Thus,  for  instance ;  if  a  lease  for  life  be  made  upon  condition,  that 
if  a  stranger  pay  to  the  lessor  20Z.  then  immediately  the  land  shaS 
remain  to  the  same  stranger,  this  remainder,  it  seems,  is  void;  for 
the  tenant  for  life  ought  to  have  it  during  his  life,  and,  if  so,  during 
that  time  the  stranger  cannot  have  it;  for  he  can  take  no  advantage 
of  the  condition. 

Note.  —  "Conditions  can  only  be  reserved  for  the  benefit  of  the 
grantor  and  his  heirs."  4  Kent  Com.  127. 

After  the  passage  of  the  Statute  of  Uses  it  was  possible  to  give 
an  estate  to  B,  and  to  provide  that,  on  an  event,  B's  estate  should  be 
cut  short  and  an  estate  to  C  should  begin.   See  Chapter  VIII,  infra. 


1 


BENNETT    v.  MORRIS. 

6  Rawle  (Pa.)  9.     1835. 

Land  was  given  to  Charlotte  for  life,  and  then  to  "her  only  heir 
during  its  life." 


CHAP,  rv.]  BENNETT  V.    MORRIS.  499 

Kennedy,  J.  By  the  terms  of  the  will,  the  devise  of  the  land  to 
the  daughter  is  limited  to  her  expressly  for  life.  This  limitation, 
although  express,  would  not  perhaps  be  sufficient  to  take  this  de- 
vise out  of  the  operation  of  the  rule  recognized  and  laid  dowTi  in 
Shelley's  Case,  seeing  there  is  a  remainder  over  limited  by  the  will 
to  her  heir.  Pauly  v.  Lowdall,  Sty.  249,  273;  Dubher  v.  Trollop,  8 
Vin.  233,  tit.  Devise,'[J.  a.  pi.  13;  Moore  v.  Parker,  Skin.  559;  Robin- 
son V.  Robinson,  1  Burr.  38.  But  to  this  remainder  to  her  heir  there 
is  also  superadded  an  express  limitation  for  the  life  of  such  heir, 
which  goes  to  show  clearly  that  the  testator  did  not  intend  by  his 
will  to  give  to  his  daughter  a  fee-simple  estate  in  the  land,  but  that 
she  should  have  barely  an  estate  for  her  life;  and  that  her  heir  or 
heirs,  whoever  he,  she,  or  they  might  happen  to  be  at  her  death, 
should  take  by  purchase  a  remainder  for  life  also.  Besides,  if  he  had 
intended  that  his  daughter  should  have  the  fee  in  the  land,  it  was 
unnecessary  and  useless  in  him  to  have  made  a  will  for  that  purpose, 
because  she  would  have  taken  it  by  operation  of  law  without. 

The  word  "heir"  then  could  not  have  been  used  here  by  the  tes- 
tator with  a  view  to  set  forth  the  nature  and  quantum  of  estate  in- 
tended to  be  given  to  his  daughter,  but  for  the  purpose  of  describing 
the  person  who  should  have  the  remainder  for  life  in  the  land  after 
her  death.  It  was  meant  by  him  to  be  understood  as  a  descriptio  per- 
sonce,  as  in  Haddon's  Case,  where  the  testator  "de\nsed  to  one  for 
life,  and  so  afterwards  to  every  person  that  should  be  his  heir,  for 
Hfe  only,"  and  it  was  adjudged  in  the  Common  Pleas  to  carry  an 
estate  in  possession  to  the  tenant  for  life,  with  a  remainder  for  hfe 
to  the  next  heir,  and  nothing  more.  .  .  .  Having  now  sho^vni  that  the 
word  "heir"  in  the  case  under  consideration,  must  be  construed 
a  word  of  purchase  and  not  of  limitation,  it  in  the  next  place  becomes 
material  to  determine  whether  the  remainder  for  hfe  given  to  the 
heir  of  the  first  devisee,  was  vested  or  contingent.  It  is  certain  that 
the  daughter  could  have  no  heir  during  her  life,  for  the  rule  of  law 
in  this  respect  is  nemo  est  hceres  viventis.  As  no  person  then  could 
become  her  heir  during  her  life,  it  was  altogether  uncertain  who  might 
happen  to  be  her  heir  at  her  death.  ...  In  Moore  v.  Parker,  Skin. 
559,  Rolle,  Chief  Justice,  lays  it  down,  "if  a  devise  be  to  a  man  for 
life,  and  after  to  his  heir,  this  is  an  estate  in  fee;  but  if  it  be  to  the 
heirs  of  such  heir,  such  devise  then  is  a  contingent  remainder;"  the 
word  "heirs"  in  this  latter  case  being  engrafted  on  the  word  "heir," 
renders  it,  as  in  the  case  at  bar,  a  designatio  personam,  or  word  of  pur- 
chase, and  makes  it  altogether  uncertain,  during  the  life  of  the  first 
devisee,  who  the  person  may  be  that  will  answer  to  the  desciiption 
of  his  heir  at  his  death,  and  hence  the  remainder  limited  to  such  heir 
is  contingent,  on  account  of  the  uncertainty  of  the  person  who  is  to 
take  it.  From  the  authorities,  then,  on  this  subject,  as  well  as  from 
the  nature  of  the  devise  over  in  the  case  before  us,  it  appears,  with' 


500  BAILS    V.    DAVIS.  [CHAP.  IV. 

out  any  doubt,  to  be  a  contingent,  and  not  a  vested  remainder, 
limited  to  the  heir  of  the  daughter  for  hfe. 

Note.  —  The  cases  distinguishing  between  vested  and  contingent 
remainders  are  very  numerous.  It  is  submitted  that  they  are  prop- 
erly to  be  distinguished  by  the  following  test :  — 

A  future  estate  must,  in  the  nature  of  things,  await  the  determina- 
tion of  prior  estates  before  it  becomes  an  estate  in  possession.  If 
the  owTier  of  the  future  estate  is  in  being  and  ascertained,  and  is 
entitled  to  the  possession  of  the  land  whenever  the  preceding  estate 
or  estates  determine,  his  remainder  is  vested. 

All  other  remainders  are  contingent.  For  example ;  if  land  is  given 
to  B  for  life,  remainder  to  B's  unborn  son.  Here  the  remainderman 
is  not  in  existence.  Or,  if  land  is  given  to  B  for  life,  remainder  for  life 
to  such  person  as  may  be  the  heir  of  B,  as  in  the  principal  case.  The 
person  who  will  prove  to  be  the  heir  may,  or  may  not,  be  in  being, 
but,  in  either  case,  is  as  yet  unascertained.  Or,  if  land  is  given  to  an 
ascertained  person  in  being,  but  upon  a  condition,  as  where  land  is 
given  to  B  for  life,  remainder  to  C,  if  C  marries. 

If  land  is  given  to  B  for  hfe,  remainder  to  C  for  life,  and  C  is  in 
being,  C  has  a  vested  remainder.  The  possibility  that  C  may  die 
before  B  and  therefore  never  enjoy  the  land  is  immaterial. 

There  are  in  some  States  statutes  which  lay  down  tests  for  dis- 
tinguishing between  vested  and  contingent  remainders,  which  differ 
from  the  test  set  forth  above. 


BAILS   V.  DA\TS. 

241  III.  536.     1909. 

Mr.  Justice  Dunn  delivered  the  opinion  of  the  court: 

A  demurrer  was  sustained  to  a  bill  for  partition  filed  in  the  circuit 
court  of  Macon  County,  the  bill  was  dismissed  for  want  of  equity  and 
the  complainants  have  appealed. 

The  complainants  deraign  title  from  Jonas  Nye.  He  conveyed 
the  premises  by  a  statutory  quit-claim  deed  "to  Joseph  Kretzer  and 
Mora  Kretzer,  his  wife,  during  their  natural  lives  and  after  their 
death  to  the  heirs  of  said  Joseph  Kretzer."  The  Kretzers  were  after- 
ward divorced  and  Mora  Kretzer  conveyed  all  interest  in  the  prem- 
ises to  Joseph  Kretzer,  whose  title  by  subsequent  conveyances  has 
become  vested  in  the  complainants.  Joseph  Kretzer  has  two  sons, 
one  of  whom  conveyed  his  interest  in  the  premises  to  the  other,  who 
was  made  a  party  to  the  bill  and  filed  the  demurrer. 

Appellants  claim  to  be  seized  of  the  premises  in  fee  simple. 
Whether  they  are  so  seized  depends  upon  the  question  whether  the 


CHAP.  IV.]  BAILS   V.    DAVIS.  501 

title  conveyed  by  Jonas  Nye  to  Joseph  Kretzer  was  a  fee  or  only  a 
life  estate.  The  language  of  the  deed  purports  to  convey  the  premises 
to  the  grantees  during  their  joint  lives  and  after  their  death  to  the 
heirs  of  Joseph  Kretzer.  Appellants  claim  that  this  deed  is  within 
the  rule  in  Shelley's  Case  and  conveyed  a  fee  to  Joseph  Kretzer,  sub- 
ject only  to  the  life  estate  of  IVIora  Kretzer  as  a  tenant  in  common  of 
the  premises,  and  that  by  the  conveyance  of  her  interest  the  whole 
estate  vested  in  Joseph  Kretzer.  No  brief  has  been  filed  on  behalf  of 
the  appellees. 

Under  the  rule  in  Shelley's  Case,  which  is  in  force  in  this  State,  if 
an  estate  for  life  is  gi-anted  by  any  instrument  and  the  remainder  is 
limited  by  the  same  instrument,  either  mediately  or  immediately,  to 
the  heirs  of  the  hfe  tenant,  the  life  tenant  takes  the  remainder  as  well 
as  the  life  estate.  The  rule  is  one  of  the  most  finnly  established  rules 
of  property  and  is  unshaken  in  this  State.  In  determining  whether 
it  is  apphcable  in  a  given  case  the  question  does  not  turn  upon  the 
quantity  of  estate  intended  to  be  given  to  the  first  taker,  whether  a 
life  estate  or  more,  but  upon  the  nature  of  the  estate  intended  to  be 
given  to  the  heirs,  whether  by  inheritance  or  otherwise.  Vangieson  v. 
Henderson,  150  111.  119;  Ward  v.  Bidler,  239  id.  462.  When  the  heir 
takes  in  the  character  of  heir  he  must  take  in  the  quality  of  heir,  and 
all  heirs  taking  as  heirs  must  take  by  descent.  Baker  v.  Scott,  62  111, 
86.  The  limitation  to  heirs  by  that  name  as  a  class,  to  take  in  succes- 
sion from  generation  to  generation,  requires  the  estate  of  inheritance 
imported  by  that  limitation  to  vest  in  the  first  taker.  The  language 
of  the  deed  clearly  indicates  the  nature  of  the  estate  intended  to  be 
given  to  the  heirs  of  Joseph  Kretzer.  He  is  given  an  estate  for  life 
with  remainder  in  fee  to  his  heirs  as  a  class,  wathout  reference  to 
indi\'iduals  or  any  other  condition.  The  estate  thus  given  to  the  heirs 
by  the  operation  of  the  rule  vests  in  the  life  tenant. 

The  requisites  of  the  rule  are  stated  to  be,  first,  a  freehold  estate; 
second,  a  limitation  of  the  remainder  to  the  heir  or  heirs  of  the  body 
of  the  person  taking  the  freehold  estate  by  the  name  of  heirs  as  a 
class  and  without  explanation,  as  meaning  sons,  children,  etc.;  third, 
the  estates  of  freehold  and  in  remainder  must  be  created  by  the  same 
instrument;  fourth,  the  estates  must  be  of  the  sam.e  quality,  —  that 
is,  both  legal  or  both  equitable.  Baker  v.  ScoU,  supra ;  Ward  v.  Butler, 
supra.  All  these  requisites  are  present  here,  viz.,  a  life  estate  to 
Joseph  Kretzer  and  a  remainder  in  fee  simple  to  his  heirs,  —  both 
legal  estates  created  by  one  deed. 

Two  reasons  suggest  themselves  which  might  be  urged  against  the 
application  of  the  rule:  (1)  The  life  estate  is  in  one-half  the  property 
only,  while  the  remainder  is  in  the  whole;  (2)  the  life  estate  might  be 
determined  by  the  death  of  ]\Iora  Kretzer  in  the  lifetime  of  Joseph, 
thus  destroying  the  remainder  by  determining  the  particular  estate 
before  the  happening  of  the  contingency  which  would  determine  the 


502  BAILS    V.    DAVIS.  [CHAP.  IV, 

persons  who  would  succeed  to  the  remainder.  Neither  of  these  rea- 
sons, however,  is  a  vaUd  objection  to  the  apphcation  of  the  rule.  It  is 
not  a  requisite  that  the  estate  given  to  the  ancestor  and  that  to  the 
heirs  shall  be  of  the  same  quantity'.  Ward  v.  Butler,  supra.  The  rule 
has  no  effect  upon  the  estate  given  to  the  ancestor.  It  affects  only 
the  remainder  given  to  the  heirs  and  causes  such  remainder  to  vest 
in  the  ancestor  and  not  in  the  heirs.  If  there  is  a  merger  in  the  ances- 
tor, it  follows,  not  as  a  necessary  result  of  the  operation  of  the  rule, 
but  from  the  operation  of  another  independent  rule  of  law  m  regard 
to  separate  estates  which  in  any  manner  become  vested  in  one  per- 
son. In  regard  to  the  destruction  of  the  supposed  contingent  re- 
mainder to  the  heirs  of  Joseph  Kretzer  who  cannot  be  known  in  his 
lifetime,  by  the  termination  of  the  particular  estate  before  his  death, 
the  rule  that  contingent  remainders  are  destroyed  which  do  not  vest 
at  or  before  the  termination  of  the  particular  estate  has  no  applica- 
tion. There  is  no  contingency,  because  the  remainder  which  is 
expressed  to  be  to  the  heirs  of  Joseph  Kretzer  the  law  declares  to  be 
a  remainder  to  Joseph  Kretzer,  the  same  as  if  it  had  been  made 
expressly  to  him  and  his  heirs. 

Where  there  is  a  limitation  to  several  for  their  lives  with  a  remainder 
in  fee  to  the  heirs  of  one  of  them,  the  estate  in  remainder  vests  at 
once  in  the  ancestor  to  whose  heirs  it  purports  to  be  given.  Fuller  v. 
Chamier,  L.  R.  2  Eq.  682;  Bullard  v.  Goffe,  20  Pick.  252.  The  limi- 
tation to  the  heirs  must  be  to  the  heirs  of  a  person  taking  a  particular 
estate  of  freehold,  but  if  it  is  confined  to  such  heirs  then  it  is  imma- 
terial whether  there  be  several  ancestors  taking  the  particular  estate 
or  only  one;  nor  whether  their  estates  be  several,  provided  they  all 
take,  or  joint;  nor  whether  the  remainder  be  to  the  heirs  of  all  or  only 
of  some  or  one  of  such  ancestors;  nor  whether  the  estate  to  the  an- 
cestor be  such  as  may  possibly  determine  in  the  lifetime  of  such 
ancestor  or  not.  Watkins  on  Descent,  162-164;  Fearne  on  Contin- 
gent Remainders  (4th  ed.),  23-30;  1  Preston  on  Estates,  313-320; 
Rogers  v.  Down,  9  Mod.  292;  Merrill  v.  Rumsey,  1  Keb.  688. 
Fearne  states  the  rule  as  follows  (p.  25) :  "Whensoever  the  ancestor 
takes  any  estate  of  freehold,  whether  for  his  own  life  or  the  life  of 
another,  or  whether  it  be  of  such  a  nature  that  it  may  determine  in 
his  lifetime  or  not,  and  there  is  afterwards,  in  the  same  conveyance, 
a  limitation  to  his  right  heirs  or  heirs  in  tail,  (either  immediately, 
without  the  intervention  of  any  mean  estate  of  freehold  between  his 
freehold  and  the  subsequent  limitation  to  his  heirs,  or  mediately, 
that  is,  with  the  interposition  of  some  such  mean  estate,)  there  such 
subsequent  limitation  to  the  heirs  or  heirs  in  tail  vests  immediately 
in  the  ancestor  and  does  not  remain  in  contingency  or  abeyance,  with 
this  distinction :  that  where  such  subsequent  limitation  is  immediate 
it  then  executes  in  the  ancestor  and  becomes  united  to  his  particular 
freehold,  forming  therewith  one  estate  of  inheritance  in  possession; 


CHAP.  IV.]  BAILS    V.    DAVIS.  503 

but  where  such  limitation  is  mediate  it  is  then  a  remainder  vested  in 
the  ancestor  who  takes  the  freehold,  not  to  be  executed  in  possession 
till  the  determination  of  the  preceding  mean  estates." 

The  deed  of  Jonas  Nye  conveyed  to  Joseph  Kretzer  and  Mora 
Kretzer  an  estate,  as  tenants  in  common,  during  their  joint  lives 
with  a  remainder  in  fee  to  Joseph  Kretzer.  The  conveyance  of  Mora 
Kretzer  to  Joseph  Kretzer  vested  the  latter  with  the  whole  title. 

The  court  erred  in  sustaining  the  demurrer  to  the  bill,  and  the 
decree  will  be  reversed  and  the  cause  remanded  to  the  circuit  court, 
with  directions  to  overrule  the  demurrer. 

Reversed  and  remanded,  with  directions. 


504  LITTLETON,    TENURES.  [cHAP.  V 


CHAPTER   V. 
SEISIN  AND  DISSEISIN. 


COKE  UPON  LITTLETON,  17  b. 

"Seised";  seidtus,  cometh  of  the  French  word  seisin,  i.e.,  possessio, 
saving  that  in  the  common  law,  seised  or  seisin  is  properly  applied  to 
freehold,  and  possessed  or  possessio  properly  to  goods  and  chattels; 
although  sometime  the  one  is  used  instead  of  the  other. 

Note.  —  In  Cochrane  v.  Moore,  L.R.  25  Q.  B.  D.  57,  supra,  Fry, 
L.J.,  said  that  in  Bracton's  day  the  distinction  between  real  and 
personal  property  had  not  yet  grown  up;  that  the  distinction  then 
recognized  was  between  things  corporeal  and  things  incorporeal; 
and  that  the  law  recognized  seisin  as  the  common  incident  of  all 
property  in  corporeal  things. 

Littleton  spoke  of  a  tenant  for  years  as  seised:  "Also  if  a  man 
letteth  tenements  for  term  of  years,  by  force  of  which  lease  the  lessee 
is  seised."   §  567. 

The  word  "seisin"  came  to  be  a  word  of  art.  A  is  properly  said  to 
be  seised  of  Blackacre,  if  he  has  an  estate  of  freehold  therein,  and 
is  in  actual  possession.  He  may  also  properly  be  said  to  be  seised  if 
he  has  an  estate  of  freehold  therein,  immediately  expectant  upon  a 
term  for  years  (or  other  term  less  than  freehold),  and  the  tenant  of 
such  term  is  in  the  actual  possession.  In  either  case,  he  is  said  to 
be  seised  in  deed. 

If  a  person  having  a  freehold  estate  in  possession  died,  and  the 
estate  descended  to  his  heir,  the  heir  was  said  to  be  seised  in  law, 
even  before  he  entered,  —  provided  that  no  one  else  had  usurped 
the  possession.  Similarly,  of  a  person  having  a  freehold  reversion  or 
remainder  (see  Chapter  IV.  supra)  who  became  entitled  to  the  pos- 
session by  the  determination  of  a  precedent  particular  estate  of 
freehold. 


LITTLETON,  TENURES,  §  279. 

And  note  that  disseisin  is  properly,  where  a  man  entereth  into  any 
lands  or  tenements  where  his  entry  is  not  congeable,  and  ousteth 
him  which  hath  the  freehold. 


CHAP,  v.]  LEACH    V.    JAY,  505 

1  ROLLE'S  ABRIDGMENT,  659,  pi.  5. 

If  a  man  has  a  house,  and  locks  it,  and  departs,  and  another 
comes  to  the  house,  and  takes  the  key  of  the  door  mto  his  hand,  and 
says  that  he  claims  the  house  to  himself  in  fee,  and  without  any  entry 
into  the  house,  this  is  a  disseisin  of  the  house. 


LEACH  V.   JAY. 

L.  R.  9  Ch.  D.  42.     1878. 

This  was  an  appeal  from  a  decision  of  the  Master  of  the  Rolls. 

The  statement  of  claim  alleged  as  follows :  — 

Robert  Roberts  died  in  1864  intestate  as  to  his  real  estates  leaving 
Anne  Roberts  his  sole  heiress-at-law,  and  thereupon  his  real' estates 
descended  to  and  became  vested  in  Anne  Roberts  as  such  heiress-at- 
law,  and  remained  so  vested,  and  she  had  seisin  in  law  thereof  at  the 
time  of  her  death. 

The  said  R.  Roberts  was  at  the  time  of  his  death  seised  of  certain 
freehold  houses  at  Brighton,  a  freehold  house  at  E.,  in  the  county  of 
Surrey,  then  or  late  in  the  occupation  of  W.,  and  two  freehold  houses 
at  L.,  in  the  said  county  of  Surrey,  then  or  late  in  the  occupation  of 
E.  and  another. 

Upon  the  death  of  R.  Roberts,  his  widow,  Mary  Roberts,  under 
colour  of  a  pretended  will  of  her  husband  in  her  favour,  entered  into 
possession  of  the  said  real  estates,  and  retained  possession  of  them 
until  her  death  in  1869,  whereupon  her  devisees,  the  defendants, 
entered  into  possession  of  them. 

Anne  Roberts  died  in  1871,  having  by  her  will,  dated  in  1870,  after 
giving  her  residuary  personal  estate  to  the  plaintiff,  John  Leach, 
devised  as  follows:  ''I  also  bequeath  and  devise  to  him"  (the  plain- 
tiff) "all  real  estate  (if  any)  of  which  I  may  die  seised." 

The  defendants  ha\dng  refused  to  deliver  up  possession  of  the 
houses  to  the  plaintiff,  or  to  recognise  his  title  thereto  as  Amie 
Roberts'  devisee,  he  brought  this  action,  claiming  to  have  his  title 
established,  and  to  recover  possession,  with  consequential  relief. 

The  several  defendants  demurred  to  the  statement  of  claim  on  the 
ground  that  Anne  Roberts'  will  did  not,  under  the  circumstances 
alleged  in  the  statement  of  claim,  pass  the  property  or  any  right  of 
entry  thereon  to  the  plaintiff,  or,  in  other  words,  that  Armc  Roberts 
was  not  seised  of  the  property  at  the  time  of  her  death. 

The  Master  of  the  Rolls  allowed  the  demurrer,  and  from  this 
decision  the  plaintiff  appealed, 

James,  L.J. :  —  I  do  not  think  we  can  differ  from  the  jVIaster  of  the 
Rolls  in  this  case.   This  lady,  for  some  reason  or  motive  of  her  own, 


506  RANDOLPH    V.    DOSS.  [cHAP.  V. 

or  for  no  reason,  chose  to  use  one  of  the  most  technical  words  in  our 
law.  The  word  has  acquired  no  other  meaning  than  its  technical 
meaning,  it  has  never  got  into  ordinary  use;  therefore  we  are  not  at 
liberty  to  attribute  to  it  any  other  meaning  merely  because  we  sup- 
pose that  the  testatrix  did  not  know  the  true  meaning  of  the  word. 
It  has  been  argued  in  favour  of  the  appellant  that  seisin  now  has  lost 
its  distinctive  meaning,  that  all  its  consequences  have  long  ceased  to 
exist,  and  therefore  that  you  cannot  predicate  of  anything  that  a 
testator  died  seised  of  it  in  any  other  sense  than  that  it  was  part  of 
his  real  estate.  I  am  of  opinion  that  there  are  such  things  as  seisin 
and  disseism  still.  Mr.  Joshua  Williams  says  in  his  late  book  on 
Seisin :  "  If  a  person  wrongfully  gets  possession  of  the  land  of  another 
he  becomes  wi'ongfully  entitled  to  an  estate  in  fee  simple,  and  to  no 
less  estate  in  that  land;  thus,  if  a  squatter  wrongfully  encloses  a  bit 
of  waste  land  and  builds  a  hut  on  it  and  lives  there,  he  acquires  an 
estate  in  fee  simple  by  his  own  wrong  in  the  land  which  he  has  en- 
closed. He  is  seised,  and  the  owner  of  the  waste  is  disseised.  It  is 
true  that,  until  by  length  of  time  the  Statute  of  Limitations  shall 
have  confirmed  his  title,  he  may  be  turned  out  by  legal  process.  But 
as  long  as  he  remains  he  is  not  a  mere  tenant  at  will,  nor  for  years, 
nor  for  life,  nor  in  tail ;  but  he  has  an  estate  in  fee  simple.  He  has  sei- 
sin of  the  freehold  to  him  and  his  heirs.  The  rightful  owner  in  the 
meantime  has  but  a  right  of  entry,  a  right  in  many  respects  equiva- 
lent to  seisin;  but  he  is  not  actually  seised,  for  if  one  person  is  seised 
another  person  cannot  be  so."  Upon  the  allegations  in  this  statement 
of  claim,  it  appears  to  me  that  Mary  Ptoberts  was  in  the  position  of 
the  squatter  in  Mr.  Williams'  book,  that  she  squatted  on  the  land, 
and  that  she  and  her  heirs  acquired  an  estate  in  fee  by  wrong  which 
in  time  might  eventually  be  turned  into  a  rightful  estate.  She  was 
seised,  and  as  no  one  can  be  seised  and  disseised  at  the  same  time,  the 
testatrix  was  not  at  the  time  of  her  death  seised  of  the  land  in 
question.  The  appeal  must  therefore  be  dismissed  with  costs. 


RANDOLPH  V.  DOSS. 

4  Miss.  205.     1839. 

Hartwell  Vick  was  seised  of  certain  lands  at  the  time  of  his 
death.  His  widow  claimed  dower  therein.  Vick's  title  to  such  lands 
was  disputed. 

Mr.  Justice  Trotter.  The  proof  is  full  and  complete  as  to  the 
possession  of  Hartwell  Vick,  during  his  coverture  with  Syhaa  C. 
Doss,  for  several  years  before  his  death.  This  is  sufficient  to  entitle 
the  widow  to  dower  as  against  all  the  world  except  those  who  may 
have  the  paramount  title.  For"it  is  a  well-settled  rule,  that  the  seisin 


CHAP,  v.]  DEVER  V.    HAGERTY.  507 

of  the  husband  even  for  a  moment  will  entitle  the  wdfe  to  do^wr 
against  strangers  and  those  claiming  under  him,  even  though  his 
seisin  be  tortious.  A  tenant  at  will  made  a  feoffment  of  the  land  and 
died;  and  the  feoffee  was  estopped  from  denying  the  right  of  the  wife 
of  the  feoffor  to  dower.  And  this  principle  is  recognised  in  all  the 
cases  on  this  subject,  both  in  England  and  this  country. 

Note.  —  Similarly,  a  husband  may  have  curtesy  in  land  of  which 
his  wife  was  a  disseisor.   Coglan  v.  Pellens,  48  N.  J.  L.  27,  32. 


DEVER  V.  HAGERTY. 

169  N.Y.  481.     1902. 

Werner,  J.  The  action  is  in  ejectment.  The  premises  are  in  the 
borough  of  BrookljTi  in  the  greater  city  of  New  York.  The  plaintiff, 
as  grantor,  sues  for  the  benefit  of  CauUdns,  her  grantee,  under  a  deed 
given  while  the  defendant  Hagerty  was  in  the  adverse  possession  of 
the  premises.  A  brief  recital  of  the  chronological  histoiy  of  the  title 
will  clearly  define  the  decisive  question  in  the  case.  Prior  to  1886 
the  plaintiff,  Maria  A.  Dever,  was  the  owner  of  the  premises  in  suit. 
On  May  12th,  1886,  the  same  were  sold  for  arrears  of  taxes  to  the 
amount  of  $675.00,  under  the  provisions  of  chapter  114,  Laws  of 
1883,  relating  to  the  then  city  of  Brooklj-n.  The  defendant  Hagerty 
was  the  purchaser  at  said  sale,  and  on  July  11th,  1888,  received  a  tax 
deed  under  which  he  went  into  possession  of  the  premises  on  Septem- 
ber 19th,  1888,  and  has  ever  since  remained  in  possession.  This  deed 
was  recorded  on  September  19th,  1888.  On  July  25th,  1895,  while 
the  defendant  Hagerty  was  so  in  possession,  the  plaintiff,  Dever, 
executed  and  delivered  to  Caulkins  a  deed  of  said  premises,  and  this 
is  the  deed  under  which  the  plaintiff  sues  for  the  benefit  of  her 
grantee.  This  deed  was  recorded  on  August  23d,  1895.  On  January 
20th,  1896,  the  plaintiff,  Dever,  executed  and  delivered  to  the  defend- 
ant Hagerty  a  deed  of  the  same  premises,  which  was  recorded  on 
January  24th,  1896.  The  defendant  Hagerty  took  this  deed  with  the 
knowledge  that  a  deed  had  pre\iously  been  given  to  Caulkins. 

The  trial  court  based  its  decision  for  the  plaintiff  upon  two  grounds: 
First.  That  the  tax  deed  to  Hagerty  was  invalid  on  account  of  irreg- 
ularities in  the  tax  proceedings.  Second.  That  the  deed  from  Dover 
to  Hagerty  was  null  and  void  because  the  grantee  had  knowledge  of 
the  prior  deed  to  Caulkins.  The  affirmance  by  the  Appellate  Division 
of  the  judgment  entered  upon  this  decision  was  founded  wholly  upon 
alleged  irregularities  in  the  tax  proceedings  which  were  relied  upon  to 
invalidate  the  tax  deed  given  therein.  Our  view  of  this  case  obviates 
the  necessity  for  inquiring  into  the  regularity  of  the  tax  proceedings 


508  DEVER    V.    HAGERTY,  [CHAP.  V. 

or  the  validity  of  the  tax  deed.  We  think  that  when  this  action  was 
commenced  the  defendant  Hagerty  had  a  title  to  these  premises 
which  was  good  as  against  the  plaintiff  and  Caulkins,  her  grantee. 
When  the  latter  received  her  deed  Hagerty  was  in  adverse  possession 
of  the  premises  mider  a  claim  of  title  founded  upon  the  tax  deed. 
The  deed  from  the  plaintiff  to  Caulkins  was,  therefore,  absolutely 
void  as  against  Hagerty.  R.  S.  [9th  ed.]  vol.  2,  p.  1813,  sec.  147; 
Livingston  v.  Proseus,  2  Hill,  526;  Chamberlain  v.  Taylor,  92  N.Y. 
348;  Pearce  v.  Moore,  114  N.Y.  259.  The  latter  deed,  although  void 
as  against  Hagerty,  v/as  good  as  against  the  plaintiff,  the  gi-antor 
therein  named,  and,  under  the  old  common-law  rule  which  has  been 
retained  in  section  1501  of  the  Code  of  Civil  Procedure,  the  right  of 
entry  which  passed  to  Caulkins,  the  grantee,  could  be  enforced  in  an 
action  of  ejectment  brought  in  the  name  of  her  grantor.  Hamilton  v. 
Wright,  37  N.Y.  502.  As  has  been  intimated,  we  have  inherited  this 
form  of  procedure  from  the  common  law.  It  was  based  upon  the 
theory  that  under  a  deed  which  was  void  as  against  a  person  in  ad- 
verse possession,  the  title  remained  in  the  grantor,  while  the  grantee 
took  nothing  more  than  a  right  of  entry  which  was  merely  a  chose  in 
action.  As  the  assignee  of  a  chose  in  action  could  not  sue  upon  it  at 
common  law,  the  courts  created  this  method  of  permitting  the  as- 
signee to  sue  in  the  name  of  his  assignor.  As  applied  to  actions  in 
ejectment  it  was  simply  allowing  the  grantee  under  a  void  deed  to 
use  his  grantor's  title  for  the  purpose  of  getting  possession  of  the  land. 
With  the  adoption  of  the  Code  rule,  requiring  suits  to  be  brought  by 
the  real  party  in  interest  and  permitting  assignees  of  choses  of  action 
to  sue  in  their  own  names,  the  common-law  rule  was  abolished  except 
as  to  actions  in  ejectment,  in  which  the  rule  still  survives.  Thus  it  is 
apparent  that,  if  this  action  had  been  brought  before  the  execution 
and  delivery  of  the  deed  from  the  plaintiff  to  the  defendant  Hagerty, 
the  plaintiff's  first  grantee,  Caulkins,  could  have  rested  upon  the 
title  of  her  gi-antor,  the  plaintiff,  and  could  have  recovered  unless  the 
tax  deed  to  the  defendant  Hagerty  was  regular  and  valid.  But  this 
action  was  not  brought  until  after  the  delivery  and  recording  of  the 
deed  from  the  plaintiff  to  the  defendant  Hagerty.  What  was  the 
effect  of  this  deed?  The  answer  is  obvious.  As  the  deed  from  the 
plaintiff  to  Caulkins  was  void  the  title  to  the  premises  remained  in 
the  former.  This  title  was,  therefore,  in  the  plaintiff  when  she  subse- 
quently executed  and  delivered  the  deed  to  Hagerty.  That  deed 
convej^ed  the  plaintiff's  title  to  the  defendant  Hagerty.  Since 
Caulkins'  right  of  entrj'  depended  upon  the  continuance  of  title 
in  her  gi'antor,  the  plaintiff,  it  is  difficult  to  understand  upon  what 
theory  it  could  be  held  that  the  plaintiff  was  entitled  to  recover 
in  ejectment,  when  the  defendant  had  that  title  and  was  in  possession 
thereunder.  Upon  principle,  it  would  seem  so  plain  that  the  plaintiff 
is  not  entitled  to  recover  that  the  citation  of  authorities  would 


1 


CHAP,  v.]  DEVER  V.    HAGERTY.  509 

seem  to  be  superfluous.  But  the  question  is  also  settled  by  authority. 
In  Jackson  ex  dem.  Lathrop  v.  Demont,  9  Johns.  55,  it  was  held  that 
where  a  tenant  in  possession  of  land,  claiming  to  hold  adversely, 
received  a  deed  or  release  of  the  premises  from  one  of  the  lessors,  such 
deed  was  effectual  and  a  bar  to  the  lessor  who  executed  it.  The 
chancellor,  who  wrote  in  that  case,  summarized  it  as  follows: 
"Neither  of  the  lessors  of  the  plaintiff  ha^^e,  then,  shown  a  right  to 
recover.  We  cannot  give  effect  to  the  deed  to  Nichols  (gi-antee) 
because  of  the  adverse  possession  existing  at  the  time  of  the  sale,  and 
we  camiot  allow  Latlirop  (grantor)  to  recover  m  defiance  of  his  own 
deed  to  Miller  (subsequent  grantee).  To  jaeld  to  the  pretensions  of 
either  would  be  shaking  estabhshed  principles;  and,  though  Nichols 
may,  perhaps,  have  ground  to  complain  of  the  act  of  Lathrop  in  con- 
vening to  Miller,  instead  of  lending  his  name  and  assistance  to 
recover  the  possession  of  the  land  for  him,  yet  that  consideration 
cannot  affect  this  case.  In  the  action  of  ejectment  we  must  look 
steadily  to  the  legal  title."  To  the  same  effect  are  the  cases  of  Jack- 
son ex  dem.  Bonnel  v.  Wheeler,  10  Johns.  164;  Jackson  ex  dem.  Bonnel 
V.  Foster,  12  Johns.  488;  and  Jackson  ex  dem.  Preston  v.  Smith,  13 
Jolms.  406.  The  last  of  these  cases  is  also  authority  for  the  rule, 
which  has  steadily  been  adhered  to  in  this  State,  that  a  person  in 
possession  of  land  claiming  title  may  purchase  in  an  outstanding 
title  to  protect  that  possession. 

The  case  at  bar,  reduced  to  its  simplest  elements,  may,  therefore, 
be  re-stated  thus:  The  plaintiff  had  title.  She  attempted  to  convey  it 
to  Caulkins,  but  failed  because  the  deed  was  void  by  reason  of 
defendant  Hagerty's  adverse  possession  under  a  claim  of  title.  Then 
the  plaintiff  conveyed  to  Hagerty.  This  deed  was  good  because, 
when  it  was  made,  the  plaintiff  had  the  title  and  Hagerty  had  the 
right  to  take  it.  As  plaintiff  had  no  title  when  this  action  was  com- 
menced she  could  not  maintain  an  action  on  her  0"wti  account;  nor 
for  the  benefit  of  Caulkins  because  the  latter's  right  of  entry  de- 
pended upon  plaintiff's  title.  None  of  the  essential  facts  being  in 
dispute  this  situation  cannot  be  changed  upon  another  trial. 

The  judgment  of  the  Appellate  Division  should,  therefore,  be 
reversed  and  complaint  dismissed,  with  costs  in  all  courts. 

Note.  —  In  Campbell  v.  Point  Street  Iron  Works,  12  R.I.  452,  it  was 
held  that  a  disseisee's  right  was  not  subject  to  execution. 

The  common  law  conceived  that  the  disseisor  acquired  the  fee 
simple,  that  the  disseisee  had  a  mere  right  to  recover  his  estate  in 
the  land,  and  that  this  right  was  not  assignable.  There  are  import- 
ant statutory  changes  in  many  jurisdictions. 


510  COKE    UPON    LITTLETON.  [CHAP.  VI. 


CHAPTER  VI. 

COMMON  LAW  METHODS  OF  CREATING,   OR 
TRANSFERRING,   ESTATES. 


COKE  UPON  LITTLETON,  48  a,  b. 

"Livery  of  seisin."  Traditio,  or  deliberatio  seisinae,  is  a  solemnity, 
that  the  law  requireth  for  the  passing  of  a  freehold  of  lands  or  tene- 
ments by  deHvery  of  seisin  thereof. 

And  there  be  two  kinds  of  livery  of  seisin,  viz.  a  livery  in  deed,  and 
a  livery  in  law.  A  livery  in  deed  is  when  the  feoffor  taketh  the  ring  of 
the  door,  or  turf  or  twig  of  the  land,  and  delivereth  the  same  upon  the 
land  to  the  feoffee  in  name  of  the  land. 

A  seised  of  an  house  in  fee,  and  being  in  the  house,  saith  to  B :  I 
demise  to  you  this  house  for  term  of  my  life;  this  is  a  good  beginning 
to  limit  the  estate,  but  here  wanteth  livery.  A  livery  in  deed  maj'  be 
done  two  maimer  of  ways.  By  a  solemn  act  and  words;  as  by  delivery 
of  the  ring  or  hasp  of  the  door,  or  by  a  branch  or  twig  of  a  tree,  or  by 
a  turf  of  the  land,  and  with  these  or  like  words,  the  feoffor  and  feoffee 
both  holding  the  deed  of  feoffment,  and  the  ring  of  the  door,  hasp, 
branch,  twig,  or  turf,  and  the  feoffor  saying.  Here  I  dehver  you  seisin 
and  possession  of  this  house,  in  the  name  of  all  the  lands  and  tene- 
ments contained  in  this  deed,  according  to  the  form  and  effect  of  this 
deed.  Or  by  words  without  any  ceremony  or  act;  as,  the  feoffor  being 
at  the  house  door,  or  within  the  house,  Here  I  deliver  you  seisin  and 
possession  of  this  house,  in  the  name  of  seisin  and  possession  of  all  the 
lands  and  tenements  contained  in  this  deed;  et  sic  de  similihus:  or, 
Enter  you  into  this  house  or  land,  and  have  and  enjoy  it  according 
to  the  deed;  or,  Enter  into  the  house  or  land,  and  God  give  you  joy; 
or,  I  am  content  you  shall  enjoy  this  land  according  to  the  deed;  or 
the  like.  For  if  words  may  amount  to  a  livery  within  the  view,  much 
more  it  shall  upon  the  land.  But  if  a  man  deliver  the  deed  of  feoff- 
ment upon  the  land,  this  amounts  to  no  livery  of  the  land,  for  it 
hath  another  operation  to  take  effect  as  a  deed;  but  if  he  deliver  the 
deed  upon  the  land  in  name  of  seisin  of  all  the  lands  contained  in  the 
deed,  this  is  a  good  livery:  and  so  are  other  books  intended  that  treat 
hereof,  that  the  deed  was  delivered  in  name  of  seisin  of  that  land. 
Hereby  it  appeareth,  that  the  delivery  of  amiihing  upon  the  land  in 
name  of  seisin  of  that  land,  though  it  be  nothing  concerning  the  land, 
as  a  ring  of  gold,  is  good. 


d 


CHAP.  VI.]  DOE    V.    COLE.  511 

A  livery  in  law  is,  when  the  feoffor  saith  to  the  feoffee,  being  in  the 
view  of  the  house  or  land:  I  give  you  yonder  land  to  you  and  your 
heirs,  and  go  enter  into  the  same,  and  take  possession  thereof  accord- 
ingly, and  the  feoffee  doth  accordingly  in  the  life  of  the  feoffor  enter, 
this  is  a  good  feoffment.  .  .  .  But  if  either  feoffor  or  the  feoffee  die 
before  entry  the  livery  is  void.  And  livery  within  the  view  is  good 
where  there  is  no  deed  of  feoffment. 


LITTLETON,  TENURES,  §§  59,  60. 

In  a  lease  for  years,  by  deed  or  without  deed,  there  needs  no 
livery  of  seisin  to  be  made  to  the  lessee  but  he  may  enter  when  he 
will  by  force  of  the  same  lease. 

But  if  a  man  letteth  lands  or  tenements  by  deed,  or  without  deed, 
for  tenn  of  j^ears,  the  remainder  over  to  another  for  life,  or  in  tail, 
or  in  fee;  in  this  case  it  behoveth,  that  the  lessor  maketh  livery  of 
seisin  to  the  lessee  for  years,  otherwise  nothing  passeth  to  them  in 
the  remainder,  although  that  the  lessee  enter  into  the  tenements. 
And  if  the  termor  in  this  case  entereth  before  any  liverj^  of  seisin 
made  to  him,  then  is  the  freehold,  and  also  the  reversion,  in  the  lessor. 
But  if  he  maketh  livery  of  seisin  to  the  lessee,  then  is  the  freehold, 
together  with  the  fee  to  them  in  the  remainder,  according  to  the 
form  of  the  grant  and  the  will  of  the  lessor. 

Note.  —  If  the  ultimate  remainder  is  in  fee,  the  tenant  of  the 
present  estate  and  the  remainderman  or  remaindermen  all  hold  of 
the  grantor's  lord. 


DOE  V.  COLE. 

7  B.  &  C.  243.     1827. 

Prideaux  had  a  freehold  estate  in  Blackacre,  the  possession  being 
in  a  tenant  for  years.  He  granted  Blackacre  to  the  plaintiffs,  and  the 
question  was  whether  this  grant,  without  livery  of  seisin,  transferred 
his  estate. 

Bayley,  J.  It  is  laid  do^vn jdistinctly,  in  Co.  Litt.  49  a,  "that  if  a 
man  be  seised  of  two  acres  in  fee,  and  letteth  one  of  them  for  years, 
and  intending  to  pass  them  both  by  feoffment,  maketh  a  charter  of 
feoffment,  and  maketh  livery  in  the  acre  in  possession  in  name  of 
both,  only  the  acre  in  possession  passeth  by  the  livery.  Yet  if  the 
lessee  attorn,  the  reversion  of  that  acre  shall  pass  by  the  deed  and 
attornment."  And  Lord  Coke  afterwards  says,  "So  it  is  if  any  man 
make  a  lease,  and  by  deed  grant  the  reversion  in  fee,  here  the  freehold 
with  attornment  of  the  lessee  by  the  deed  doth  pass,  which  is  in  lieu 


512  LITTLETON,    TENURES.  [cEEAP.  VI. 

of  livery."  Now  that  is  an  authority  to  shew,  that  where  lands  are  in 
possession  of  a  tenant,  the  reversioner  may  convey  his  interest  by 
deed.  All  lands  lie  in  livery  or  in  grant:  and  they  do  not  He  in  livery 
where  the  party  intending  to  convej'  cannot  give  immediate  posses- 
sion. Here  Prideaux  had  the  freehold  in  him,  but  the  right  of  posses- 
sion was  in  his  tenant.  He,  therefore,  had  a  reversion  expectant  on 
the  determination  of  the  term.  Now  a  reversion,  which  is  a  vested 
right,  lies  in  grant.  There  can  be  no  doubt  that  this  instrument  has 
words  fully  sufficient  to  operate  by  way  of  grant.  On  the  short 
ground,  that  where  the  right  of  possession  is  in  a  tenant  for  j'^ears,  the 
right  of  the  landlord  is  a  reversion  expectant  on  the  determination 
of  the  tenancy,  and  lies  in  grant,  and  not  in  livery,  I  am  of  opinion 
that  the  reversion  of  the  lands  sought  to  be  recovered  passed  by  the 
deed. 

HoLROYD,  J.  The  passage  cited  from  Co.  Litt.  49  a,  is  decisive  to 
shew  that  the  reversion  passed  by  this  deed  to  the  lessors  of  the 
plaintiff. 

LiTTLEDALE,  J.  If  Pridcaux  had  been  in  actual  possession  of  these 
premises,  and  intended  to  have  conveyed  his  interest  to  a  stranger, 
he  ought  to  have  delivered  seisin.  But  possession  bemg  in  a  tenant 
from  year  to  year,  Prideaux  had  only  a  reversion,  and  in  order  to 
convey  that  reversion  to  the  tenant  in  possession,  must  have  released 
his  right;  but  the  proper  mode  of  passing  a  reversion  to  a  stranger 
not  in  possession  is  by  grant.  Here  Prideaux  has  granted  the  rever- 
sion by  the  deed  in  question  to  the  lessors  of  the  plaintiff,  who  are 
entitled  to  recover. 

Judgment  for  the  plaintiff. 


LITTLETON,   TENURES,   §  551. 

Attornment  is  as  if  there  be  lord  and  tenant,  and  the  lord  will 
grant  by  his  deed  the  services  of  his  tenant  to  another  for  term  of 
years,  or  for  tei-m  of  life,  or  in  tail,  or  in  fee,  the  tenant  must  attorn 
to  the  grantee  in  the  life  of  the  grantor,  by  force  and  virtue  of  the 
grant,  or  otherwise  the  grant  is  void.  And  attornment  is  no  other  in 
effect,  but  when  the  tenant  hath  heard  of  the  grant  made  by  his  lord, 
that  the  same  tenant  do  agree  by  word  to  the  said  grant,  as  to  say  to 
the  grantee,  I  agree  to  the  grant  made  to  you,  &c.,  or  I  am  well  con- 
tent with  the  grant  made  to  you :  but  the  most  common  attornment 
is,  to  say.  Sir,  I  attorn  to  you  by  force  of  the  said  gi-ant,  or  I  become 
your  tenant,  &c.,  or  to  dehver  to  the  grantee  a  penny,  or  a  halfpenny, 
or  a  farthing,  by  way  of  attornment. 

Note.  —  The  necessity  for  attornment  has  been  generally  abol- 
ished by  statute. 


CHAP.  VI.]  BLACKSTONE,    COMMENTARIES.  513 

In  Fisher  v.  Deering,  60  111.  114,  the  court  held  that  attornment 
was  necessary,  but  this  is  now  otherwise,  by  statute.  Barnes  v. 
Northern  Trust  Co.,  169  111.  112,  116. 


LITTLETON,  TENURES,  §§  444,  445,  459. 

Releases  of  all  the  right  which  men  have  in  lands  and  tenements, 
etc.,  are  commonly  made  in  this  form,  or  of  this  effect: 

Know  all  men  by  these  presents,  that  I  A.ofB.  have  remised,  released, 
and  altogether  from  me  and  my  heirs  quit-claimed:  or  thus,  for  me  and 
my  heirs  quit-claimed  to  C.  of  D.  all  the  right,  title,  and  claim  which  I 
have,  or  by  any  means  may  have,  of  and  in  one  messuage  with  the  appur- 
tenances in  F.,  &c.  And  it  is  to  be  understood,  that  these  words, 
remisissee,  et  quietum  clamdsse,  are  of  the  same  effect  as  these  words, 
relaxdsse. 

Also,  if  a  man  letteth  to  another  his  land  for  term  of  years,  if  the 
lessor  release  to  the  lessee  all  his  right,  &c.,  before  that  the  lessee  had 
entered  into  the  sam.e  land  by  force  of  the  same  lease,  such  release  is 
void,  for  that  the  lessee  had  not  possession  in  the  land  at  the  time  of 
the  release  made,  but  only  a  right  to  have  the  same  land  by  force  of 
the  lease.  But  if  the  lessee  enter  into  the  land,  and  hath  possession 
of  it  by  force  of  the  said  lease,  then  such  release  made  to  him  by  the 
feoffor,  or  by  his  heir,  is  sufficient  to  him  by  reason  of  the  privity 
which  by  force  of  the  lease  is  between  them,  &c. 

Note.  —  A  release  must,  by  the  common  law,  be  under  seal. 


BLACKSTONE,   COMMENTARIES. 

Book  II,  p.  326. 

A  surrender,  sursumredditio,  or  rendering  up,  is  of  a  nature  directly 
opposite  to  a  release;  for,  as  that  operates  by  the  greater  estate's 
descending  upon  the  less,  a  surrender  is  the  falling  of  a  less  estate 
into  a  greater.  It  is  defined,  a  ^aelding  up  of  an  estate  for  hfe  or 
years  to  him  that  hath  the  immediate  reversion  or  remainder, 
wherein  the  particular  estate  may  merge  or  drown,  by  mutual 
agi'eement  between  them.  It  is  done  by  these  words:  "hath  sur- 
rendered, granted,  and  yielded  up."  The  surrenderor  must  be  in 
possession;  and  the  surrenderee  must  have  a  higher  estate,  in  which 
the  estate  surrendered  may  merge;  therefore  tenant  for  life  camiot 
surrender  to  him  in  remainder  for  years.  In  a  surrender  there  is  no 
occasion  for  livery  of  seisin. 


5i-l  FEARNE,    CONTINGENT    REMAINDERS.  [cHAP,  VI. 

COKE  UPON   LITTLETON,  217  a. 

By  the  rule  of  law  a  livery  of  seisin  must  pass  a  present  freehold  to 
some  person,  and  cannot  give  a  freehold  t?i  futuro.  .  .  .  Therefore  if  a 
lease  for  years  be  made  to  begin  at  Michaelmas,  the  remainder  over 
to  another  in  fee,  if  the  lessor  make  livery  of  seisin  before  JMichael- 
mas,  the  livery  is  void,  because  if  it  should  work  at  all  it  must  take 
effect  presently,  and  cannot  expect. 

Note.  —  If  A,  seised  of  a  freehold  future  estate,  purported  to 
grant  it  to  B,  the  gi-ant  to  take  effect  in  futuro,  the  grant,  as  such, 
was  void.  See  Roe  v.  Tranmer,  2  Wils.  75,  i7ifra. 

A  term  for  years  might  be  made  to  commence  in  futuro.  Barwick's 
Case,  5  Co.  93  b. 


PIBUS  V.  MITFORD. 

1  Vent.  372,  378.     1674. 

If  a  gives  land  to  B  for  life,  remainder  to  A  and  the  heirs  male  of 
his  body,  because  a  man  cannot  give  to  himself,  the  remainder  i8 
void,  for  a  man  cannot  convey  to  himself  by  a  conveyance  at  the 
common  law. 


FEARNE,   CONTINGENT  REMAINDERS,   307. 

If  a  lease  be  made  to  A  for  life,  and  after  the  death  of  A,  and  one 
day  after,  the  land  shall  remain  to  B  for  life,  this  remainder  to  B  is 
void,  because  it  cannot  take  effect  immediately  upon  the  determina- 
tion of  the  preceding  estate.  This  rule  was  originally  founded  on 
feudal  principles,  and  was  intended  to  avoid  the  inconveniences 
which  might  arise  by  admitting  an  interval,  when  there  should  be 
no  tenant  of  the  freehold,  to  do  the  sei-vices  to  the  lord,  or  answer  to 
stranger's  prwcipes;  as  well  as  to  preserve  an  uninterrupted  connec- 
tion between  the  particular  estate  and  the  remainder,  which,  in  the 
consideration  of  law,  are  but  several  parts  of  one  whole  estate. 

Note.  —  The  freehold  reverts  to  the  grantor.  Since  he  cannot 
convey  to  himself  he  has  the  same  estate  as  he  had  before  he  created 
the  estate  in  A,  and  not  merely  a  term  for  one  day.  And  the  seisin 
cannot  shift  from  him  to  B  at  the  end  of  the  one  day,  without  livery 
of  seisin  at  that  time. 


CHAP.  VI.]  LITTLETON,    TENURES.  615 

RYAN  V.  MONAGHAN. 

99  Tenn.  338.     1897. 

James  Monaghan  gave  certain  real  estate  to  his  wife,  Margaret, 
for  life,  with  remainder  to  the  heirs  of  his  son  James  P.  Monaghan. 
The  widow  died  before  the  son. 

Beard,  J.  This  estate,  thus  devised  to  the  "heirs  of"  the  son,  was 
a  contingent  remainder,  and  as  this  son  was  [at  his  mother's  death] 
ahve,  and  as  nemo  est  hceres  viventis,  this  remainder  estate,  not  being 
able  to  take  effect  on  the  termination  of  the  particular  or  supporting 
estate,  fell  to  the  ground. 

Note. — A  freehold  contingent  remainder  is  destroyed  unless  it 
vests  at,  or  before,  the  determination  of  the  prior  freehold  estates. 
At  such  determination,  the  seisin  passes  on  to  the  o\^^ler  of  the  first 
vested  freehold  remainder,  or  reverts.  It  is  immaterial  that  later  the 
event  happens  which  would  have  turned  the  contingent  remainder 
into  a  vested  remainder. 

A  freehold  contingent  remainder,  limited  upon  a  term  for  years,  is 
void  ab  initio.  Thus  of  an  estate  to  A  for  50  years,  remainder  to  the 
heirs  of  A.  See  Goodright  v.  Cornish,  1  Salk.  226. 


LITTLETON,  TENURES,  §§  599,  611. 

By  the  feoffment  of  tenant  in  tail,  fee  simple  passeth  by  the  same 
feoffment  b}'  force  of  the  livery  of  seisin. 

When  tenant  for  life  maketh  a  feoffment  in  fee,  by  such  a  feoffment 
the  fee  simple  passeth.  For  tenant  for  years  may  make  a  feoffment  in 
fee,  and  by  his  feoffment  the  fee  simple  shall  pass,  and  yet  he  had  at 
the  time  of  the  feoffment  made  but  an  estate  for  term  of  years. 

Note.  —  Cf .  the  cases  in  Chapter  V,  supra,  showing  that  a  stran- 
ger to  the  title  might,  by  wrong,  acquire  the  seisin. 

A  tortious  conveyance  by  a  tenant  for  life  or  for  years  forfeited  his 
estate,  and  "  he  in  the  reversion  or  he  in  the  remainder  may  enter." 
Littleton,  Tenures,  §§  415,  416. 

An  estate  created  by  a  tortious  conveyance  by  a  tenant  in  tail 
could  not  be  ended  during  the  life  of  the  tenant  in  tail,  and,  at  his 
death,  could  be  ended  only  by  action,  and  not  by  entry.  Littleton, 
Tenures,  §§  595,  596. 

A  tortious  conveyance  could  be  made  by  feoffment,  fine  or  recov- 
er}', but  not  otherwise. 

Tortious  conveyances  have  been  generally  abolished,  and  the 
doctrine  has  no  importance  at  the  present  time,  except  as  it  throws 
light  on  the  doctrine  of  acquiring  title  by  adverse  possession. 


516  LITTLETON,    TENURES.  [CHAP.  VII.' 


CHAPTER   VII. 
RENTS. 


LITTLETON,   TENURES,   §§  213-218. 

Three  manner  of  rents  there  be,  that  is  to  say,  rent  sendee,  rent 
charge,  and  rent  seek.  Rent  service  is  where  the  tenant  holdeth  his 
land  of  his  lord  by  fealty  and  certain  rent,  or  by  homage  fealtj^  and 
certain  rent,  or  by  other  services  and  certain  rent.  And  if  rent  service 
at  any  day,  that  it  ought  to  be  paid,  be  behind,  the  lord  may  distrain 
for  that  of  common  right. 

And  if  a  man  will  give  lands  or  tenements  to  another  in  the  tail, 
yielding  to  him  certain  rent  by  the  3'ear,  he  of  common  right  may 
distrain  for  the  rent  behind,  though  that  such  gift  was  made  without 
deed,  because  that  such  rent  is  rent  service.  In  the  same  manner  it 
is,  if  a  lease  be  made  to  a  man  for  life,  or  the  life  of  another,  rendering 
to  the  lessor  certain  rent,  or  for  tenn  of  years  rendering  rent. 

But  in  such  case,  where  a  man  upon  such  a  gift  or  lease  will  reserve 
to  him  a  rent  service,  it  behooveth,  that  the  reversion  of  the  lands 
and  tenements  be  in  the  donor  or  lessor.  For  if  a  man  will  make  a 
feoffment  in  fee,  or  will  give  lands  in  tail,  the  remainder  over  in  fee 
simple,  without  deed,  reserving  to  him  a  certain  rent,  this  reservation 
is  void,  for  that  no  reversion  remains  in  the  donor,  and  such  tenant 
holds  his  land  immediately  of  the  lord,  whom  his  donor  held,  &c. 

And  this  is  by  force  of  the  statute  of  Quia  onpteores  terrarwn.  For 
before  that  statute,  if  a  man  had  made  a  feoffment  in  fee  simple,  by 
deed  or  without  deed,  yielding  to  him  and  to  his  heirs  a  certain  rent, 
this  was  a  rent  service,  and  for  this  he  might  have  distrained  of  com- 
mon right;  and  if  there  were  no  reservation  of  any  rent,  nor  of  any 
service,  yet  the  feoffee  held  of  the  feoffor  by  the  same  service,  as  the 
feoffor  did  hold  over  of  his  lord  next  paramount. 

But  if  a  man,  by  deed  indented,  at  this  day  maketh  such  a  gift  in 
fee  tail,  the  remainder  over  in  fee;  or  a  lease  for  life,  the  remainder 
over  in  fee;  or  a  feoffment  in  fee;  and  by  the  same  indenture  he  re- 
serveth  to  him  and  to  his  heirs  a  certain  rent,  and  that  if  the  rent  be 
behind,  that  it  shall  be  lawful  for  him  and  his  heirs  to  distrain,  &c., 
such  a  rent  is  a  rent  charge;  because  such  lands  or  tenements  are 
charged  with  such  distress  by  force  of  the  writing  onlj^,  and  not  of 
common  right.  And  if  such  a  man,  upon  a  deed  indented,  reserve  to 
him  and  to  his  heirs  a  certain  rent,  without  any  such  clause  put  in 


CHAP.  VII.]  CHALLONER   V.    ROBINSON.  517 

the  deed,  that  he  may  distrain,  then  such  rent  is  rent  seek;  for  that 
he  cannot  come  to  have  the  rent,  if  it  be  denied,  by  way  of  distress; 
and  if  in  this  case  he  were  never  seised  of  the  rent,  he  is  without 
remedy,  as  shall  be  said  hereafter. 

Also,  if  a  man  seised  of  certaia  land  grant,  by  a  deed  poll,  or  by 
indenture,  a  yearly  rent  to  be  issuing  out  of  the  same  land,  to  another 
in  fee,  or  in  fee  tail,  or  for  term  of  life,  &c.,  with  a  clause  of  distress, 
&c.,  then  this  is  a  rent  charge;  and  if  the  gi'ant  be  without  clause  of 
distress,  then  it  is  a  rent  seek.  And  note,  that  rent  seek  ide7n  est  quod 
redditus  siccus;  for  that  no  distress  is  incident  unto  it. 


CHALLONER  v.   ROBINSON. 

[1908.]     1  Ch.  49. 

This  was  an  application  for  an  interim  injunction,  which  raised 
the  question  as  to  the  right  of  the  defendants,  as  the  superior  land- 
lords of  premises  in  King  Street,  St.  Jam.es's,  to  whom  arrears  of  rent 
were  due,  to  le\y  distress  upon  certain  pictures,  the  property  of 
various  artists,  and  in  the  possession  of  an  under-lessee  of  part  of  the 
premises  when  the  distress  was  put  in. 

Cozens-Hardy,  i\LR.  The  question  on  this  appeal  is  as  to  the 
right  of  the  defendants,  the  superior  landlords  of  premises  in  King 
Street,  St.  James's,  to  whom  large  arrears  of  rent  are  due,  to  le\'y  a 
distress  upon  certain  pictures  and  works  of  art,  the  property  of 
various  artists,  which  were  upon  the  premises  when  the  distress  was 
put  in.  By  the  common  law  a  landlord  is  entitled  to  distrain  upon 
goods  upon  the  demised  premises  without  reference  to  the  ownership 
of  the  goods.  This  is  the  general  rule,  but  it  is  subject  to  certain 
exceptions,  which  are  as  well  established  as  the  rule  itself.  Any  man 
claiming  the  benefit  of  one  of  these  exceptions  must  satisfj^  the  court 
that  his  case  falls  within  the  exception.  No  considerations  of  hard- 
ship can  avail  the  man  whose  goods  are  thus  taken  to  satisfy  a  debt 
which  he  has  not  contracted  to  pay.  The  rights  of  the  landlord  are 
purely  legal,  and  so  are  the  exceptions.  Now  in  the  leading  case  of 
SimpsonY.  Hartopp,  Willes,  512;  1  Sm.  L.  C.  11th  ed.  p.  437,  decided 
in  the  year  1744,  Willes,  C.J.,  laid  down  the  exceptions  with  great 
accuracy,  and  the  words  used  by  him  must  be  taken  to  define  and 
limit  the  exceptions  precisely.  The  only  one  material  for  this  appeal 
is  the  second  —  namely,  "things  delivered  to  a  person  exercising  a 
public  trade,  to  be  carried,  wrought,  worked  up,  or  managed  in  the 
way  of  his  trade  or  employ."  In  Clarke  v.  Millwall  Dock  Co.,  17  Q. 
B.  D.  494,  Lord  Herschell,  dealing  with  this  particular  exception, 
said:  "I  am  of  opinion  that  we  are  limited  in  this  case  by  the  strict 
terms  of  the  exception.  It  is  very  difficult  to  find  any  sound  principle 


518  ENGLISH    V.    KEY.  [CHAP.   VII. 

upon  which  to  explain  the  law  of  distress  and  to  support  the  various 
decisions.  No  doubt  the  general  law  which  enables  a  landlord  to 
distrain  the  goods  of  a  third  person  upon  the  tenant's  premises  is,  as 
was  said  in  argument,  anomalous,  and  the  exception  in  question  is 
also  anomalous.  I  think  that  we  cannot  go  bej^ond  the  terms  of  the 
definition  of  the  exception."  That  statement,  which  is  in  accordance 
with  a  long  line  of  authorities,  binds  this  court. 

[The  court  after  examining  the  facts  held  that  the  pictures  could 
be  distrained.] 

Note.  —  See,  accord,  Trieber  v.  Knabe,  12  Md.  491.  See  also 
American  Warrant  Co.  v.  Sinnemahoning  Co.,  205  Pa.  403. 

The  remedy  of  the  landlord  by  distress  has  been  affected  both 
by  judicial  decisions  and  numerous  statutes  in  this  country.  See 
Taylor,  Landlord  and  Tenant,  9th  ed.,  §§  558,  559. 


ENGLISH  V.   KEY. 

39  Ala.  113.     1863. 

This  action  was  brought  by  R.  M.  Key  against  W.  W.  English; 
was  founded  on  the  defendant's  promissory  note  for  S300,  dated  the 
17th  April,  1858,  payable  on  the  1st  January,  1859,  to  R.  H.  Jones 
or  bearer,  and  assigned  by  said  Jones  to  the  plaintiff;  and  was  com- 
menced on  the  21st  June,  1860.  The  defendant  pleaded  the  general 
issue,  and  failure  of  consideration;  and  issue  was  joined  on  those 
pleas.  On  the  trial,  as  the  bill  of  exceptions  states,  "the  plaintiff  read 
in  evidence  the  note  described  in  the  complaint,  and  the  defendant 
then  offered  in  evidence  the  following  statement  of  facts :  One  White 
recovered  a  judgment  against  Key  on  the  3d  April,  1858.  On  the  9th 
April,  1858,  an  execution  on  said  judgment  was  issued,  and  placed 
in  the  hands  of  the  sheriff  of  Monroe.  On  the  15th  April,  1858,  Key 
rented  the  land  to  English;  and  on  the  17th  April,  1858,  English  gave 
the  note  sued  on,  for  the  rent  of  the  land  for  the  balance  of  the  year. 
On  the  5th  Juty,  1858,  the  sheriff  sold  the  land  to  one  Bender,  who 
claimed  an  immediate  right  of  possession  under  his  purchase,  and 
agreed  to  let  English  remain  in  possession,  as  his  tenant,  for  the 
remainder  of  the  year;  to  which  English  voluntarily  assented.  Eng- 
lish accounted  to,  and  settled  with  Bender,  for  the  rent  after  the 
5th  July.  The  land  was  not  redeemed  from  Bender  by  Key  until 
after  the  1st  January,  1859.  The  plaintiff  admitted  these  facts  to  be 
true,  but  objected  to  the  evidence  as  irrelevant  and  incompetent. 
The  court  sustained  the  objection,  and  excluded  the  evidence;  to 
which  the  defendant  excepted,  and  which  he  now  assigns  as  error. 

R.  W.  Walker,  J.  The  familiar  rule,  which  prohibits  the  tenant 


CHAP.  VII.]  ENGLISH    V.    KEY.  519 

from  denying  the  title  of  the  landlord,  in  any  proceeding  instituted 
by  the  latter,  for  the  recovery  of  rent,  or  of  possession,  must  be  taken 
with  the  qualification  (now  quite  as  well  established  as  the  principal 
rule),  that  the  tenant  may  show  that  he  has  been,  bona  fide,  evicted 
under  a  paramount  title,  or  that,  since  the  inception  of  the  lease,  the 
title  of  the  landlord  has  been  extinguished,  or  has  passed  from  him, 
either  by  his  own  act,  or  by  operation  of  law.  Randolph  v.  Carlton, 
8  Ala.  614;  Pope  v.  Harkins,  16  Ala.  323;  Smith  v.  Mundy,  18  Ala. 
185;  Wolf  V.  Johnson,  30  Miss.  513;  Ryers  v.  Farwell,  9  Barb.  615; 
1  Washb.  Real  Prop.  615. 

Except  where  it  is  payable  in  advance,  no  claim  for  rent  arises, 
until  the  lessee  has  enjoyed  the  premises  the  whole  time  for  which 
the  payment  of  a  rent  is  stipulated  to  be  made.  Hence  it  follows, 
that  if  the  tenant  be  evicted  by  a  paramount  title,  pending  the  lease, 
and  before  the  rent  falls  due,  he  will  not  be  liable  to  his  landlord  for 
rent  for  the  unexpired  term  during  which  he  may  have  enjoyed  the 
land.  In  conformity  to  the  principle  that  an  entire  contract  cannot 
be  apportioned,  there  is,  in  such  cases,  no  apportionment  of  rent  in 
reference  to  the  length  of  time  of  occupation.  The  enjoyment  of  the 
estate  for  the  stipulated  term  is  the  consideration  for  the  covenant  to 
pay  rent;  and  on  the  plain  ground  of  equity,  that  the  obligation  to 
pay  ceases  when  the  consideration  for  it  ceases,  the  eviction  of  the 
lessee  by  a  paramount  title  works  his  discharge  from  the  payment 
of  any  rent  thereafter  falling  due.  Clum's  Case,  10  Coke's  R.  128; 
Salmon  v.  Smith,  1  Wm.  Saunders'  R.  205  (n.);  Wood  v.  Par- 
tridge, 11  Mass.  488;  Boardman  v.  Oshorn,  23  Pick.  295;  Morse  v. 
Goddard,  13  Mete.  177;  George  v.  Putney,  4  Cush.  351;  Russell  v. 
Fabyan,  7  Foster  (N.  H.)  543;  Martin  v.  Martin,  7  Md.  375;  Giles  v. 
Comstock,  4  Comstock,  275;  Smith's  Landlord  and  Tenant,  134; 
3  Kent,  464;  1  Washb.  R.  P.  97,  337,  341;  Greenl.  Cruise,  title  28, 
eh.  3,  §§  1  ei  seq. 

By  the  ancient  law,  no  grant  of  a  reversion  could  be  made  without 
the  consent  of  the  tenant,  expressed  by  his  attornment  to  his  new 
landlord.  Co.  Litt.  309  a,  n.  (1).  In  early  times,  the  relation  of  lord 
and  tenant  was  of  a  much  more  personal  nature  than  it  is  at  present; 
and  it  was  thought  reasonable  that  a  tenant  should  not  have  a  new 
landlord  imposed  upon  him  without  his  consent.  The  tenant,  there- 
fore, was  able  to  prevent  his  lord  from  making  a  conveyance  to  any 
person,  whom  he  did  not  choose  to  accept  as  landlord;  for  he  could 
refuse  to  attorn  to  the  purchaser,  and  without  attornment  the  gi-ant 
was  invalid.  The  only  means  by  which  the  landlord  could  convey  his 
reversion  without  his  tenant's  concurrence,  was  by  the  expensive 
process  of  a  fine  levied  in  the  court  of  common  pleas.  In  process  of 
time,  when  the  rent  paid  by  the  tenant  became  the  only  service,  of 
any  benefit,  received  from  him  by  the  landlord,  the  doctrine  was 
found  inconvenient;  and  the  necessity  of  attornment  to  the  validity 


520  ENGLISH    V.    KEY.  '  [cHAP.  VII- 

of  the  grant  of  a  reversion  was  accordingly  abolished  by  a  statute 
passed  in  the  reign  of  Queen  Anne,  (4  and  5  Anne,  ch.  16,  §  9,)  which 
also  provided,  that  no  tenant  shall  be  prejudiced  by  pajTnent  of  his 
rent  to  the  grantor  before  notice  of  the  grant.  Wms.  Real  Prop.  203. 
Both  of  these  provisions  form  part  of  the  statute  law  of  Alabama. 
Code,  §  1298;  also,  §  2215. 

Rent  is  incident  to  the  reversion;  and  the  lessor's  transfer  of  the 
reversion,  though  without  the  tenant's  attornment  to  the  assignee, 
or  any  express  mention  of  the  rent,  carries  with  it  the  rent  falling 
due  thereafter.  The  holder  of  the  reversion  may,  indeed,  sever  the 
rent  from  the  reversion;  but,  unless  it  is  specially  reserved,  the  rent 
follows  the  reversion  as  a  part  of  the  realty.  With  the  exception  of 
cases  arising  under  the  statute  of  11  George  II,  (ch.  19,  §  15,)  which 
is  confined  to  the  case  of  a  life-tenant  lessor  dying  pending  the  lease, 
and  the  principle  of  which  has  been  re-enacted  in  some  of  the  States 
and  adopted  by  the  courts  in  others,  (1  Washb.  R.  P.  98;  3  Kent,  471,) 
rent  cannot  be  apportioned  as  to  time.  There  is,  therefore,  no  appor- 
tionment of  the  rent  between  the  lessor  and  his  assignee;  but  whoever 
owns  the  reversion  at  the  time  the  rent  falls  due,  is  entitled  to  the 
entire  sum  then  due;  and  a  lessor  who  has  parted  with  the  reversion, 
without  specially  reserving  the  rent,  cannot  maintain  an  action 
against  his  lessee  for  rent  falling  due  thereafter.  Burden  v.  Thayer, 
3  Mete.  76;  Van  Wicklen  v.  Paulsen,  14  Barb.  654;  Demarest  v. 
Willard,  8  Co  wen,  206;  Martin  v.  Martin,  7  Md.  368;  Peck  v.  North- 
rop, 17  Coim.  217;  Breeding  v.  Taylor,  13  B.  Monr.  477;  Sampson  v. 
Grimes,  7  Blackf.  175;  Stout  v.  Kean,  3  Harring.  82;  Birch  v.  Wright, 
1  Tei-m  R.  378;  Flinn  v.  Calow,  1  M.  &  G.  589;  1  Washb.  R.  P.  337- 
839.  The  defense  thus  arising  in  favor  of  the  lessee,  against  an  action 
by  the  lessor  for  rent  falling  due  after  an  assignment  of  the  reversion, 
does  not  depend  upon  eviction  or  ouster  by  the  assignee,  but  is  com- 
plete without  it.  By  the  transfer  of  the  reversion,  and  of  the  rent 
afterwards  falling  due  as  incident  thereto,  the  lessor  becomes  bound 
to  pay  such  rent  to  the  assignee,  and  is  discharged  from  liability 
therefor  to  the  lessor.  George  v.  Putney,  4  Cush.  351  (356);  Farley  v. 
Thompson,  15  Mass.  18;  authorities  supra. 

The  same  principles  apply,  and  the  same  results  follow,  in  the  case 
of  a  transfer  of  the  reversion  by  judicial  sale.  In  Pope  v.  Harkins, 
16  Ala.  324,  Dargan,  C.J.,  said:  ''If  the  premises  are  sold  by  execu- 
tion against  the  landlord,  the  tenant  may  show  this  in  bar  of  the  land- 
lord's action  for  rent;  for  the  purchaser  occupies  the  same  relation  to 
the  landlord  that  a  grantee  by  deed  would."  And  the  authorities  are 
clear  to  the  point,  that  a  purchaser  of  the  lessor's  estate  at  execution 
sale  is  entitled  to  the  rent  falling  due  after  the  execution  of  the 
sheriff's  deed.  Randolph  v.  Carlton,  8  Ala. ;  Bank  of  Pa.  v.  Wise,  3 
Watts,  394;  Martin  v.  Martin,  7  Md.  368;  Wilson  v.  Delaplaine,  3 
Harring.  499;  Moore  v.  Turpin,  1  Speers,  32;  Montague  v.  Gay,  17 


CHAP.  VII.]  EHRxMAN   V.    MAYER.  521 

Mass.  439;  George  v.  Putney,  4  Cush.  351  (356);  Buffum  v.  Deane,  4 
Gray,  485;  1  Washb.  Real  Prop.  333. 

It  is  obvious,  from  what  has  been  said,  that  the  court  erred  in  re- 
jecting the  evidence. 

Judgmeyit  reversed,  and  cause  remanded. 

Note.  —  If  the  reversioner  reserved  a  right  of  entry  upon  non- 
payment of  the  rent,  and  then  transferred  the  reversion,  and  the  rent 
fell  in  arrear,  the  assignee  could  not  enter.  Littleton,  Tenures,  §  347. 
Cf.  Rice  V.  Boston  &  Worcester  R.  R.  Corp.,  12  All.  (Mass.)  141, 
supra.  But  this  rule  was  changed  by  St.  32  Hen.  VIII,  c.  34,  subdivi- 
sion 5.  (1540.) 

A  rent  may  be  assigned  without  the  reversion,  and  the  assignee 
may  sue  in  his  own  name  for  the  rent  accruing  after  the  assignment. 
Beal  V.  Boston  Car  Spring  Co.,  125  Mass.  157;  Moffatt  v.  Smith, 
4  N.Y.  126. 

There  are  statutes  in  some  States  changing  the  common  law  rule 
that  rent  is  not  apportionable  as  to  time. 

"  Rent  in  arrear  is  a  chose  in  action  and  does  not  pass  by  a  convey- 
ance of  the  reversion."  Damren  v.  American  Power  Co.,  91  Me.  334, 
337. 


EHRMAN  V.  IMAYER. 

57  Md.  612.     1881. 

Miller,  J.  This  appeal  is  from  an  order  sustaining  a  demurrer  to, 
and  dismissing  the  bill  of  complaint,  filed  by  the  appellant  against  the 
appellees.  The  relief  prayed  for  by  the  bill  is  that  the  defendants 
may  be  required  either  to  convey  to  the  complainant  the  naked  fee 
held  by  them  in  a  certain  lot  of  gi'ound  in  the  City  of  Baltimore,  or  to 
execute  to  him  a  new  lease  thereof  for  ninety-nine  years,  renewable 
forever,  subject  to  a  merely  nominal  rent.  The  facts  of  the  case  so 
far  as  disclosed  by  the  bill  and  accompanying  exhibits  are  substan- 
tially as  follows :  — 

In  September,  1782,  John  Eager  Howard  executed  a  lease  to  John 
Hoos,  of  lot  No.  649  in  Howard's  addition  to  Baltimore  Town,  for 
ninety-nine  years,  with  the  usual  covenant  for  perpetual  renewal, 
reserving  a  yearly  rent  of  "fifteen  pounds,  nine  shillings  and  four- 
pence,  current  money."  This  lot  has  a  frontage  on  Howard  Street  of 
about  one  hundred  and  sixty-nine  feet.  In  January,  1828,  the  execu- 
tors of  Howard,  under  a  power  contained  in  his  will,  sold  and  con- 
veyed the  reversion  in  this  lot  with  the  incident  rent  to  John  Hoff- 
man, and  on  the  2nd  of  November,  1832,  Hoffman  convej^ed  the 
same  to  Lucretia  Sears.  Having  thus  become  the  owner  of  the  rever- 


522  EHRMAN    V.    MAYER.  [CHAP,  VII, 

sion  in  the  entire  lot,  Mrs.  Sears  on  the  3rd  of  November,  1832, 
accepted  a  surrender  from  one  Eh  Lilly,  of  his  leasehold  interest  in  a 
large  part  of  the  lot,  consisting  of  about  one  hundred  and  twenty-two 
feet  of  its  frontage,  and  on  the  same  day  she  executed  two  leases  for 
ninety-nine  years,  renewable  forever,  of  the  part  so  surrendered, 
one  to  Sommer  and  Smith  for  sixty  feet,  and  the  other  to  Lilly  for 
sixty-two  feet  and  six  inches,  reserving  in  each  lease  an  aimual  rent  of 
$300.  It  does  not  appear,  nor  is  it  averred,  that  she  ever  made  any 
disposition  of  her  reversion  in  the  residue  of  the  lot,  consisting  of  a 
frontage  of  about  forty-six  feet,  which  she  had  acquired  under  the 
deed  from  Hoffman.  She  died  in  1845,  and  the  defendants  are  the 
trustee  and  cestuis  que  trust,  who  hold  the  legal  and  equitable  mterest 
in  her  property  under  her  will.  In  June,  1864,  Ehraian,  the  com- 
plainant, purchased  from  Gardiner  and  Matthews  their  leasehold 
interest  in  a  lot  fronting  twenty-two  feet  on  Howard  Street,  which  is 
conceded  to  he  part  of  the  residue  of  the  lot  above  mentioned,  not  em- 
braced in  the  two  leases  of  November,  1832.  The  deed  by  which  this 
interest  was  conveyed  to  Ehnnan,  recites  that  the  grantors  acquired 
their  title  under  an  assignment  from  one  John  Harman,  executed  in 
April,  1857,  subject  to  a  yearly  rent  of  S88,  and  they  convey  to  Ehr- 
man,  subject  to  the  same  rent.  No  conveyance  is  produced  showdng 
how  Harman  acquired  his  title,  nor  is  anj'thing  further  stated  in 
reference  to  the  complainant's  title.  The  bill,  however,  admits  that 
the  lot  thus  conveyed  to  the  complainant  forms  part  of  the  lot 
originally  leased  by  Howard  to  Hoos,  and  from  this  admission,  as 
well  as  what  is  'stated  in  the  several  conveyances  above  referred 
to,  it  must  be  assumed  that  the  complainant  derives  his  title  from 
Hoos,  the  original  lessee,  through  mesne  assignments  and  sub-leases. 
Such  being  the  state  of  the  case,  the  complainant,  in  his  bill,  avers 
and  insists  that  he  is  in  fact  the  owner  of  his  lot  in  fee,  and  is  entitled 
to  a  conveyance  of  the  naked  or  technical  paper  title  to  the  reversion 
therein  held  by  the  defendants,  upon  two  grounds. 

1st.  That  Mrs.  Sears,  by  receiving  and  accepting  a  surrender  of 
the  leasehold  interest  in  a  part  of  the  lot,  in  November,  1832,  and 
granting  new  leases  thereof,  reserving  new  and  increased  rents, 
thereby  extinguished  the  whole  original  rent  reserved  under  the  lease 
from  Howard,  and  complainant's  lot,  therefore,  by  operation  of  law, 
became  released  and  relieved  from  the  payment  of  any  part  of  that 
rent.  .  .  . 

First.  To  sustain  the  first  position,  the  appellant's  counsel  insists 
that  the  rent  reserved  under  our  peculiar  leases  with  covenants  for 
perpetual  renewal,  is  in  the  nature  of  a  rent  charge,  which  camiot  be 
subdivided  or  apportioned.  And  where  the  party  ha^^ng  the  rent, 
purchases  any  portion  of  the  land  charged  with  its  pajonent,  the 
whole  rent  is  thereby  extinguished.  But  conceding  this  to  be  the  case 
with  respect  to  a  rent  charge,  it  is  clearly  not  so,  and  never  has  been, 


CHAP.  VII.]  EHRMAN    V.    MAYER.  523 

with  respect  to  a  rent  service,  but  just  the  contrary.  In  Littleton's 
Tenures,  sec.  222,  the  common  law  upon  the  subject  is  thus  stated: 
"Also,  if  a  man  hath  a  rent  charge  to  him  and  his  heirs,  issuing  out  of 
certain  land,  if  he  purchase  any  parcel  of  this  to  him  and  his  heirs,  all 
the  rent  charge  is  extinct,  and  the  annuity  also,  because  the  rent 
charge  cannot  by  such  manner  be  apportioned;  but  if  a  man  which 
hath  a  rent  service,  purchase  parcel  of  the  land,  out  of  which  the  rent 
is  issuing,  this  shall  not  extinguish  all  hut  for  the  parcel;  for  a  rent  serv- 
ice m  such  case  may  be  apportioned  according  to  the  value  of  the 
land."  And  in  his  comments  upon  this  section.  Lord  Coke  saj^s,  that 
such  rent  services  as  were  not  within  the  Statute  Quia  Emptores, 
were  apportionable  at  common  law:  "as  if  a  man  maketh  a  lease  for 
life  or  years,  reserving  a  rent,  and  the  lessee  surrender  part  to  the 
lessor,  the  rent  shall  be  apportioned ;  so  if  the  lessor  recovereth  part 
of  the  land  in  an  action  of  waste,  or  entereth  for  a  forfeiture  in  part, 
the  rent  shall  be  apportioned."  Coke  Litt.  148  a.  The  reasons  upon 
which  this  distinction  rests,  as  given  by  Lord  Coke  and  Chief  Baron 
Gilbert,  need  not  be  stated  at  length.  It  is  sufficient  for  our  present 
purpose,  that  such  distinction  has  in  fact  existed  from  the  earliest 
period  of  the  common  law.  By  the  same  authority  (Littleton,  sec. 
213)  rent  service  is  defined  to  be  "where  the  tenant  holdeth  his  land 
of  his  lord  by  fealty  and  certain  rent,  or  by  homage,  fealty  and  certain 
rent,  or  by  other  services  and  certain  rent;'^  and  in  Smith's  concise 
and  admirable  lectures  on  the  Law  of  Landlord  and  Tenant,  (mar- 
ginal page  90,)  it  is  said  that  "every  rent  reserved  upon  a  lease  is  a 
rent  service,  and  is  accompanied  by  that  which  is  the  incident  of 
every  rent  service,  namely,  a  right  on  the  part  of  the  lessor  to  dis- 
train for  it."  In  leases  like  the  one  now  before  us,  as  well  as  in  other 
leases  of  land,  the  rent  most  commonly  reserved,  is  the  yearly  pay- 
ment of  a  certain  sum  of  money.  According,  then,  to  the  authorities 
referred  to,  (and  none  higher  can  be  adduced,)  if  in  such  case,  the 
lessee  surrenders  a  part  of  the  land  to  the  lessor,  the  rent  for  the 
remainder  is  not  extinguished,  but  apportioned.  Woodfall's  Land. 
&  Ten.  (10th  Ed.)  361,  362.  We  hold,  then,  that  apportionment,  and 
not  extinguishment,  was  the  result  of  the  conveyances  of  November, 
1832,  and  that  a  proportionate  part  of  the  original  rent  reserved  in 
the  lease  of  1782,  remained  fastened  upon  the  residue  of  the  lot  not 
embraced  in  those  deeds. 


NOTE. 


Covenants  to  pay  rent  are  considered  in  the  topic  of  Covenants 
Running  with  the  Land,  infra. 


624  STATUTE    OF    USES.  [cHAP.  VIIL 

CHAPTER  VIII. 
THE  STATUTE  OF  USES. 


SECTION   1. 

EFFECT  OF  THE  STATUTE  UPON  THE  METHODS  OF 
CREATING,  OR  TRANSFERRING,  ESTATES. 


STATUTE  OF  USES. 
27  Hen.  VIII,  c.  10.     1536- 

Where  by  the  common  laws  of  this  reahn,  lands  tenements  and 
hereditaments  be  not  devisable  by  testament,  (2)  nor  ought  to  be 
transferred  from  one  to  another,  but  by  solemn  livery  and  seisin, 
matter  of  record,  writing  sufficient  made  bona  fide,  without  covin  or 
■raud;  (3)  yet  nevertheless  divers  and  sundry  imaginations,  subtle 
■nventions  and  practices  have  been  used,  whereb}^  the  hereditaments 
of  this  realm  have  been  conveyed  from  one  to  another  by  fraudulent 
feoffments,  fines,  recoveries  and  other  assurances  craftily  made  to 
secret  uses,  intents  and  trusts;  (4)  and  also  by  wills  and  testaments, 
sometime  made  by  nude  parolx  and  words,  sometime  by  signs  and 
tokens,  and  sometime  by  'WTiting,  and  for  the  most  part  made  by  such 
persons  as  be  visited  with  sickness,  in  their  extreme  agonies  and  pains, 
or  at  such  time  as  they  have  scantly  had  any  good  memory  or  remem- 
brance; (5)  at  which  times  they  being  provoked  by  greedy  and  cove- 
tous persons  lying  in  wait  about  them,  do  many  times  dispose  indis- 
creetly and  unadvisedly  their  lands  and  inheritances;  (6)  by  reason 
whereof,  and  by  occasion  of  which  fraudulent  feoffments,  fines, 
recoveries  and  other  like  assurances  to  uses,  confidences  and  trusts, 
divers  and  many  heirs  have  been  unjustly  at  sundry  times  disherited, 
the  lords  have  lost  their  wards,  marriages,  rehefs,  harriots,  escheats, 
aids  pur  fair  fits  chivalier,  &  pur  file  marier,  (7)  and  scantly  any  per- 
son can  be  certainly  assured  of  any  lands  by  them  purchased,  nor 
know  surely  against  whom  they  shall  use  their  actions  or  executions 
for  their  rights,  titles  and  duties;  (8)  also  men  married  have  lost 
their  tenancies  by  the  curtesy,  (9)  women  their  dowers,  (10)  mani- 
fest perjuries  by  trial  of  such  secret  wills  and  uses  have  been  com- 
mitted; (11)  the  King's  highness  hath  lost  the  profits  and  advantages 
of  the  lands  of  persons  attainted,  (12)  and  of  the  lands  craftily  put  in 
feoffments  to  the  uses  of  aliens  bom,  (13)  and  also  the  profits  of 
v/aste  for  a  year  and  a  day  of  lands  of  felons  attauited,  (14)  and  the 


SECT.  I.]  STATUTE    OF    ENROLMENTS.  525 

lords  their  escheats  thereof;  (15)  and  many  other  inconveniencies 
have  happened,  and  daily  do  encrease  among  the  King's  subjects,  to 
their  great  trouble  and  inquietness,  and  to  the  utter  subversion  of  the 
ancient  common  laws  of  this  realm;  (16)  for  the  extirping  and  ex- 
tinguishment of  all  such  subtle  practised  feoffments,  fines,  recoveries, 
abuses  and  errors  heretofore  used  and  accustomed  in  this  realm,  to 
the  subversion  of  the  good  and  ancient  laws  of  the  same,  and  to  the 
intent  that  the  King's  highness,  or  any  other  his  subjects  of  this 
realm,  shall  not  in  any  wise  hereafter  by  any  means  or  inventions  be 
deceived,  damaged  or  hurt,  by  reason  of  such  trusts,  uses  or  con- 
fidences: (17)  it  may  please  the  King's  most  royal  majesty.  That  it 
may  be  enacted  by  his  Highness,  by  the  assent  of  the  lords  spiritual 
and  temporal,  and  the  commons,  in  this  present  parliament  assem- 
bled, and  by  the  authority  of  the  same,  in  maimer  and  form  follow- 
ing; that  is  to  say.  That  where  any  person  or  persons  stand  or  be 
seised,  or  at  any  time  hereafter  shall  happen  to  be  seised,  of  and  in 
any  honours,  castles,  manors,  lands,  tenements,  rents,  services,  rever- 
sions, remainders  or  other  hereditaments,  to  the  use,  confidence  or 
trust  of  any  other  person  or  persons,  or  of  any  body  pohtick,  by 
reason  of  any  bargain,  sale,  feoffment,  fine,  recovery,  covenant,  con- 
tract, agreement,  will  or  otherwise,  by  any  manner  means  whatso- 
ever it  be;  that  in  every  such  case,  all  and  every  such  person  and 
persons,  and  bodies  politick,  that  have  or  hereafter  shall  have  any 
such  use,  confidence  or  trust,  in  fee-simple,  fee-tail,  for  term  of. life 
or  for  3^ears,  or  otherwise,  or  any  use,  confidence  or  trust,  in  remain- 
der or  reverter,  shall  from  henceforth  stand  and  be  seised,  deemed 
and  adjudged  in  lawful  seisin,  estate  and  possession  of  and  m  the 
same  honours,  castles,  manors,  lands,  tenements,  rents,  services, 
reversions,  remainders  and  hereditaments,  with  their  appurtenances, 
to  all  intents,  constructions  and  purposes  in  the  law,  of  and  in  such 
like  estates  as  they  had  or  shall  have  in  use,  trust  or  confidence  of  or 
in  the  same;  (19)  and  that  the  estate,  title,  right  and  possession  that 
was  in  such  person  or  persons  that  were,  or  hereafter  shall  be  seised 
of  any  lands,  tenements  or  hereditaments,  to  the  use,  confidence  or 
trust  of  any  such  person  or  persons,  or  of  any  body  politick,  be  from 
henceforth  clearly  deemed  and  adjudged  to  be  in  him  or  them  that 
have,  or  hereafter  shall  have,  such  use,  confidence  or  trust,  after  such 
quality,  manner,  form  and  condition  as  they  had  before,  in  or  to  the 
use,  confidence  or  trust  that  was  in  them. 


STATUTE  OF  ENROLMENTS. 
27  Hen.  VIII,  c.  16.     15.36. 

Be  it  enacted  by  the  authority  of  this  present  parliament,  That 
from  the  last  day  of  July,  which  shall  be  in  the  year  of  our  Lord  God 


526  LUTWICH    V.    MITTON.  [CHAP.   VIII. 

1536,  no  manors,  lands,  tenements  or  other  hereditaments,  shall 
pass,  alter  or  change  from  one  to  another,  whereby  any  estate  of 
inheritance  or  freehold  shall  be  made  or  take  effect  in  any  person  or 
persons,  or  any  use  thereof  to  be  made,  by  reason  only  of  any  bargain 
and  sale  thereof,  except  the  same  bargain  and  sale  be  made  by  writ- 
ing indented,  sealed  and  inroUed  in  one  of  the  King's  courts  of  record 
at  Westminster,  (2)  or  else  within  the  same  county  or  counties  where 
the  same  manors,  lands  or  tenements,  so  bargained  and  sold,  he  or 
be,  before  the  Gustos  Rotulorum  and  two  justices  of  the  peace,  and 
the  clerk  of  the  peace  of  the  same  county  or  counties,  or  two  of  them 
at  the  least,  whereof  the  clerk  of  the  peace  to  be  one;  (3)  and  the 
same  inrollment  to  be  had  and  made  ^\ithin  six  months  next  after 
the  date  of  the  same  writings  indented;  (4)  the  same  Gustos  Rotu- 
lorum, or  justices  of  the  peace  and  clerk,  taking  for  the  inrollment  of 
every  such  writing  indented  before  them,  where  the  land  comprised 
in  the  same  writing  exceeds  not  the  yearly  value  of  forty  shillings, 
ii.  s.  that  is  to  say,  xij.  d.  to  the  justices,  and  xij.  d.  to  the  clerk;  (5) 
and  for  the  im-oUment  of  every  such  writing  indented  before  them, 
wherein  the  land  comprised  exceeds  the  sum  of  xl.  s.  in  the  yearly 
value,  V.  s.  that  is  to  say,  ii  s.  vi.  d.  to  the  said  justices,  and  ii.  s.  vi.  d. 
to  the  said  clerk  for  the  inrolling  of  the  same :  (6)  and  that  the  clerk 
of  the  peace  for  the  time  being,  within  every  such  county,  shall  suffi- 
ciently inroll  and  ingross  in  parchment  the  same  deeds  or  writings 
indented  as  is  aforesaid ;  (7)  and  the  rolls  thereof  at  the  end  of  every 
year  shall  deliver  unto  the  said  Gustos  Rotulorum  of  the  same  county 
for  the  time  being,  there  to  remain  in  the  custody  of  the  said  Gustos 
Rotulorum  for  the  time  being,  amongst  other  records  of  every  of  the 
same  counties  where  any  such  inrollment  shall  be  so  made,  to  the 
intent  that  every  party  that  hath  to  do  therewith,  may  resort  and 
see  the  effect  and  tenor  of  every  such  writing  so  inrolled. 

II.  Provided  always.  That  this  act,  nor  any  thing  therein  con- 
tained, extend  to  any  manner  lands,  tenements,  or  hereditaments, 
lying  or  being  within  any  city,  borough  or  town  corporate  within  this 
realm,  wherein  the  mayors,  recorders,  chamberlains,  bailiffs  or  other 
officer  or  officers  have  authority,  or  have  lawfully  used  to  inroll  any 
evidences,  deeds,  or  other  writings  \\dthin  their  precinct  or  limits; any 
thing  in  this  act  contained  to  the  contrary  notwithstanding. 


LUTWICH  V.  MITTON. 

Cro.  Jac.  604.     1620. 

It  was  resolved  by  the  two  Chief  Justices,  Montague  and  Ho- 
BART,  and  by  Tanfield,  Chief  Baron,  that  upon  a  deed  of  bargain 
and  sale  for  years  of  lands  whereof  he  himself  is  in  possession,  and  the 


SECT.  I.]  LUTWICH    V.    MITTON.  527 

bargainee  never  entered;  if  afterwards  the  bargainors  make  a  grant 
of  the  reversion  (reciting  this  lease)  expectant  upon  it  to  divers  uses, 
that  it  is  a  good  conveyance  of  the  reversion;  and  the  estate  was 
executed  and  vested  in  the  lessee  for  years  by  the  statute ;  and 
was  divided  from  the  reversion,  and  not  like  to  a  lease  for  years 
at  the  common  law:  for  in  that  case  there  is  not  any  apparent  lessee 
until  he  enters. 

Note.  —  Prior  to  the  passage  of  the  Statute  of  Uses,  the  doctrine 
had  become  established  m  chancery  that  the  legal  o'^7iership  of  land 
might  be  in  one  person,  and  the  equitable  owTiership  in  another  per- 
son. Thus,  if  A  enfeoffed  B  and  his  heirs  to  the  use  of  C  and  his  heirs. 
In  such  case,  C  had  no  rights  at  law,  but  was,  in  equity,  protected 
as  a  beneficiary. 

If  A  (instead  of  enfeoffing  B  to  the  use  of  C)  agi^eed,  for  a  valuable 
consideration,  to  hold  the  land  for  the  benefit  of  C,  C  was,  in  equity, 
protected  as  a  beneficiary. 

The  Statute  of  Uses  did  not  provide  that  all  attempts  to  create  uses 
should  be  void.  It  allowed  the  use  to  be  created,  but  pro\ided  that, 
forthwith  it  was  created,  it  should  be  converted  into  a  corresponding 
legal  right. 

If,  therefore,  after  the  statute,  A  wished  to  convey  his  land  to  C, 
it  was  only  necessary'  that  A  should  put  the  use,  or  equitable  right, 
in  C,  and  the  statute  would,  without  more,  convert  this  equitable 
right  into  the  corresponding  legal  right.  An  equitable  estate  became 
a  legal  estate.  Therefore  the  only  question  was:  how  shall  the  equi- 
table estate  in  C  be  raised?  And  the  equitable  estate  was  raised  in  C, 
whenever  A  made  a  promise  to  hold  the  land  for  C  (or,  in  anj'  form, 
agreed  that  C  should  have  the  benefit  of  the  land),  which  promise 
was  enforcible  in  equity. 

Such  a  promise  was  enforcible  in  equity  if  (1)  the  promisor  received 
a  consideration  for  his  promise;  or  if  (2)  the  promise  were  under  seal, 
and  the  promise  was  made  for  the  benefit  of  some  one  of  the  prom- 
isor's" blood,  or  (by  the  better  opinion)  connected  with  him  by 
marriage.  In  the  first  case,  the  promise  was  called  a  bargain  and 
sale;  in  the  second  case,  a  covenant  to  stand  seised. 

In  England  the  Statute  of  Enrolments  applied  to  a  bargain  and 
sale  of  a  freehold  estate,  but  not  to  the  bargain  and  sale  of  an  estate 
less  than  freehold.  If  A  wished  to  convey  to  C,  he  could  make  C  a 
tenant  for  years,  as  in  the  principal  case,  under  the  operation  of  the 
statute,  and  could  then,  by  a  common-law  release,  release  the  rever- 
sion to  C.  C's  term  for  years  would  merge  into  the  reversion  so 
released,  and  C  would  be  seised  in  fee.  This  form  of  conveyance, 
called  lease  and  release,  ob\aated  the  necessity  of  the  parties  going 
to  the  land,  and  did  not  fall  within  the  provisions  of  the  Statute  of 
Enrolments.  It  came  to  be  the  common  form  of  conveyance  in  Eng- 


528  LUTWICH    V.    MITTON.  [cHAP.  VIIL 

land,  and  remained  so,  for  upwards  of  two  centuries,  until  statutory 
forms  of  conveyance  were  adopted  in  the  nineteenth  century. 

In  this  country,  the  Statute  of  Enrolments  was  never  considered 
to  be  in  force.   See  Giran  v.  Doe,  7  Blackf.  (Ind.)  210. 

There  has  therefore  been  no  obstacle  to  conveying  land  by  a  bar- 
gain and  sale  in  fee. 

In  Holland  v.  Rogers,  33  Ark.  251,  the  court  said  (p.  255):  "A 
simple  bargain  and  sale  of  land,  in  writing,  in  words  of  the  present, 
and  without  any  more  is  a  conveyance,  operating  under  and  by  virtue 
of  the  Statute  of  Uses,  always  upon  sufficient  consideration.  It  was 
devised  in  England,  as  a  common  assurance,  soon  after  the  passage 
of  the  statute  (see  Blackst.  Com.  Book  ii,  p.  338)  and  has  become  the 
most  common  mode  of  conveyance  in  the  United  States." 

In  Nelson  v.  Davis,  35  Ind.  474,  the  court  said  (p.  476):  ''This 
species  of  conveyance,  says  Blackstone,  was  introduced  by  the 
Statute  of  Uses.  Before  the  passage  of  the  statute,  the  title  to  real 
estate  could  not  be  transmitted  simply  by  a  deed  of  bargain  and  sale. 
Livery  of  seizin  could  not  thus  be  dispensed  with.  It  was  the  practice 
before  the  statute  for  a  person  seized  of  lands  to  bargain  and  sell 
them  to  another,  in  which  case,  if  the  consideration  was  sufficient  to 
raise  a  use,  the  bargainor  became  immediately  seized  to  the  use  of 
the  bargainee.  And  since  the  passage  of  the  statute,  the  use  vested 
in  the  bargainee  by  a  deed  of  bargain  and  sale  is  at  once  executed  by 
the  statute,  and  the  legal  title  vested  in  the  bargainee." 

In  Chiles  v.  Conley's  Heirs,  2  Dana  (Ky.)  21,  the  court  said  (p.  23) : 
"The  writing  here  alluded  to  is  as  follows:  — 

"  '  For  value  received,  I  bargain  and  sell  unto  Arthur  Conley,  my 
whole  right  of  improvement  made  by  John  BrowTi,  and  all  the  land 
as  far  as  Thomas  Miller's  claim  interferes  with  my  claim.  Given 
under  my  hand  and  seal,  this  7th  day  of  February,  1806. 

'William  Bridges.        (Seal.) 

'Test.  Thomas  Boyd,      ) 

John  Robinson.'  ) 

"The  literal  import  of  this  writing  is  that  of  an  executed  agree- 
ment, or  a  conveyance  of  the  title  which  the  vendor  held.  It  contains 
all  the  essential  requisites  of  a  conveyance  in  fee  simple.  It  is  infor- 
mal and  unusually  summary,  when  compared  with  the  redmidant, 
quaint  and  prolix  system  of  modem  conveyances  by  deed.  But  it  is 
not  more  laconic  or  less  comprehensive  than  the  ancient  Saxon  deeds, 
and  is  almost  as  formal  and  elaborate  as  the  antiquated  charters  of 
enfeoffment;  and,  indeed,  its  form  and  stj'le  are,  in  some  respects, 
preferable  to  the  repletion  and  repetitions  which  uimecessarily  char- 
acterize and  greatly  deform  modem  deeds  of  conveyance.  It  is 
sealed,  and  signed,  and  attested  properly;  it  shows  a  valuable  con- 
sideration; it  identifies  the  parties;  describes  the  land,  and  acknowl- 
edges an  absolute  executed  sale  in  fee  of  the  vendor's  right.   These 


SECT.  I.]  JACKSON    V.    ALEXANDER.  529 

constitute  a  deed  of  conveyance;  and  therefore,  as  this  instrument 
contains  no  provision  or  intimation  to  the  contrary,  this  court  can- 
not, by  any  allowable  process  of  interpretation,  give  to  it  any  other 
character  or  effect  than  those  of  a  deed  of  bargain  and  sale.  Co.  Lit. 
7,  a;  4  Kent's  Com.  460-1." 


JACKSON  V.  ALEXANDER. 

3  Johns.  (N.Y.)  484.     1808. 

This  was  an  action  of  ejectment,  for  lot  No.  68  in  the  town  of 
Milton,  in  the  county  of  Cayuga.  The  cause  was  tried  before  ]\Ir. 
Justice  Spencer,  at  the  Cayuga  circuit,  on  the  1st  July,  1808.  On 
the  trial,  the  plaintiff  gave  in  evidence  an  exemplification  of  a  patent, 
dated  the  8th  July,  1790,  granting  the  lot  in  question  to  Joseph 
Bro^v^i,  for  his  military  services,  and  a  writing  executed  by  Bro\\Ti, 
in  the  following  words: 

"For  value  received  of  Daniel  Hudson  &  Co.  I  hereby  make  over 
and  grant  for  myself,  my  heirs,  and  executors,  unto  the  said  Daniel 
Hudson  &  Co.  his  heirs  and  assigns,  my  right  and  claim  on  the  public 
for  600  acres  of  land.  Witness  my  hand  and  seal,  this  7th  day  of 
May,  1784. 

"Joseph  Brown,  (l.  s.) 

"In  presence  of 

"Solomon  Coures, 
"John  Dolson." 

A  verdict  was  taken  for  the  plaintiff,  subject  to  the  opinion  of  the 
court,  on  a  case  containing  the  above  facts;  and  it  was  agreed,  that  if 
the  court  should  be  of  opinion,  that  the  instrument  in  writing  from 
Bro-^Ti  to  Hudson,  one  of  the  lessors  of  the  plaintiff,  was  a  sufficient 
conveyance  of  the  premises  in  question,  then  judgment  was  to  be 
entered  for  the  plaintiff,  otherwise  the  verdict  was  to  be  set  aside, 
and  a  non-suit  entered. 

Kent,  Ch.  J.  I  am  of  opinion  that  the  deed  from  Brown  to  Hudson 
was  sufficient  to  convey  his  interest  in  the  premises. 

I  agree  that  the  deed,  if  it  operates  at  all,  must  operate  as  a  bargain 
and  sale  under  the  Statute  of  Uses. 

At  the  common  law,  a  feoffment  or  lease  was  valid,  without  any 
consideration,  in  consequence  of  the  fealty  or  homage  which  was 
incident  to  every  such  conveyance.  The  law  raised  a  consideration 
out  of  the  tenure  itself.  But  after  the  Statute  of  Quia  Emptores, 
18  Ed.,  I.,  Perkins  says,  that  a  consideration  became  requisite  even  to 
the  validity  of  a  feoffment,  as  none  could  be  implied,  since,  according 
to  the  statute,  no  feudal  duty  or  service  resulted  to  the  immediate 
feoffor.   (Perkins,  sects.  528-537.)  The  general  and  the  better  opin- 


530  JACKSON  V.    ALEXANDER.  [CHAP.  VHL 

ion  is  that  the  notion  of  a  consideration  first  came  from  the  court  of 
equity,  where  it  was  held  necessary  to  raise  a  use;  and  when  con- 
veyances to  uses  were  introduced,  the  courts  of  law  adopted  the  same 
idea,  and  held  that  a  consideration  was  requisite  in  a  deed  of  bargain 
and  sale.  This  new  principle  in. the  doctrine  of  assurances  by  deed, 
met,  at  first,  with  a  very  strong  resistance  from  the  ablest  lawj-ers  of 
the  age.  Plowden,  in  his  argument  in  the  case  of  Sharington  v. 
Stroffen,  1  Plowden,  308,  309,  which  arose  upon  a  deed  under  the 
Statute  of  Uses,  contended,  with  great  force  of  reason  and  authoritj^ 
that  a  deed,  which  was  a  solemn  and  deliberate  act  of  the  mind,  did 
of  itself  import  a  consideration;  that  the  will  of  the  grantor  was  a 
sufficient  consideration,  and  it  never  could  be  called  a  nudum  pactum. 
Lord  Bacon,  in  his  reading  on  the  Statute  of  Uses,  takes  notice  of 
this  argument  of  Plowden,  and  gives  it  the  weight  of  his  sanction."! 
would  have  one  case  showed,"  said  he,  "by  men  learned  in  the  law, 
where  there  is  a  deed  and  yet  there  needs  a  consideration.  As  for 
parole,  the  law  adjudgeth  it  too  light  to  give  an  action  without  consid- 
eration; but  a  deed,  even  in  law,  improts  a  consideration,  because  of 
the  deliberation  and  ceremony  in  the  confection  of  it;  and,  therefore, 
in  8  Reginje,  it  is  solemnly  argued  that  a  deed  should  raise  a  use  with- 
out any  other  consideration."  Bacon's  ^Yorks,  v.  4,  p.  167.  But  not- 
withstanding this  strenuous  opposition,  the  rule  from  chancer}^  pre- 
vailed, and  it  has  been  long  settled,  that  a  consideration,  expressed 
or  proved,  was  necessary  to  give  effect  to  a  deed  of  bargain  and  sale. 
I  am  not  going  to  attempt  to  surmount  the  series  of  cases  on  this 
subject,  though  I  confess  myself  a  convert  to  the  argument  of  Plow- 
den. I  admit  the  rule  that  a  consideration  is  necessary  to  a  convey- 
ance to  uses,  but  I  think  that  here  is  evidence  of  a  consideration, 
appearing  on  the  face  of  the  deed  before  us,  sufficient  to  conclude  the 
grantor,  and  to  give  effect  to  it  as  a  bargain  and  sale. 

The  rule  requiring  a  consideration  to  raise  a  use,  has  become 
merely  nominal,  and  a  matter  of  form;  for  if  a  sum  of  m.oney  be  men- 
tioned, it  is  never  an  inquiry  whether  it  was  actually  paid,  and  the 
smallest  sum  possible  is  sufficient;  nay,  it  has  been  solemnly  ad- 
judged, that  a  pepper-corn  was  sufficient  to  raise  a  use.  2  Vent.  35. 
Since,  then,  the  efficacy  of  the  rule  is  so  completely  gone,  we  ought, 
in  support  of  deeds,  to  construe  the  cases  which  have  modified  the 
rule,  with  the  utmost  liberality. 

The  deed  in  the  present  case  states,  that  for  value  received  of  the 
grantee,  he  doth  grant,"  &c.  and  can  it  now  be  permitted  to  the  grantor 
to  say  there  was  no  value  received?  Value  received  is  equivalent  to 
saying,  money  was  received,  or  a  chattel  was  received.  It  is  an 
express  averment,  ex  vi  termini,  of  a  quid  pro  quo. 

[The  learned  chief  justice  held  that  the  words  were  a  sufficient 
recital  of  consideration  to  raise  a  use.] 

The  next  point  in  the  case  is,  whether  the  words  "make  over  and 


1 


S«OT.  I.]  THOMPSON    V.    THOMPSON.  531 

grant,"  be  sufficient  to  convey  Brown's  interest  in  the  land.  The 
word  grant  has  been  held  sufficient  to  pass  lands  by  way  of  use. 
^2  Mod.  253.  T.  Raym.  48.)  Though  in  its  original  meaning,  the 
word  appUed  only  to  a  conveyance  of  incorporeal  hereditaments, 
which  could  not  pass  by  livery  pf  seisin,  yet  in  conveyances  under  the 
Statute  of  Uses,  it  is  sufficient,  if  the  granting  words  are  competent 
to  raise  a  use;  for  the  statute  then  performs  the  task  of  the  ancient 
livery  of  seisin. 

My  opinion  on  both  points,  accordingly,  is,  that  the  plaintiff  is 
entitled  to  judgment. 


BOULD  V.  WYNSTON. 

Cro.  Jac.  168.     1607. 

Ejectment.  Upon  a  special  verdict,  the  case  was,  That  Sir  Henry 
Wynston  by  indenture  covenanted,  in  consideration  of  natural 
love  and  affection  to  William  Wynston,  his  eldest  son,  to  stand  seised 
to  the  use  of  William  Wynston  for  life,  and  after  to  the  use  of  such 
a  feme  as  he  afterward  should  marry,  for  life,  remainder  to  the  first 
son  of  the  said  William  Wynston  in  tail:  afterward,  the  said  William 
Wynston  being  unthrifty,  and  in  Glocester  gaol,  Sir  Henry  Wynston, 
to  disturb  the  rising  of  the  use  to  the  feme  whom  afterwards  he  should 
marry,  let  that  land  to  his  younger  son  for  a  thousand  years :  after- 
wards William  Wynston  took  to  wife  the  jailor's  daughter,  and  died 
without  issue:  and.  Whether  this  lease  were  good  against  her?  was 
the  question. 

But  all  the  court  resolved  for  the  plaintiff,  that  this  was  a  good 
use :  for  the  consideration  extends  to  the  feme  which  should  be,  as 
if  it  had  been  in  consideration  of  marriage:  for  the  love  and  affec- 
tion of  the  son  extends  as  well  to  the  feme  of  the  son  (who  is  quasi 
part  of  the  son)  as  to  the  son  himself:  for  that  by  intendment  is  good 
cause  of  the  son's  advancement. 


THOMPSON   V.  THOMPSON. 

17  Oliio  St.  649.     1867. 

The  question  was  whether  the  instrument  set  forth  below  oper- 
ated to  convey  the  land  therein  described  to  McCalla  Thompson. 

The  instrument  was  as  follows:  "  This  indenture,  made  and  entered 
into  this  28th  day  of  September,  1850,  between  Robert  Jones  of 
Cynthiana,  Kentucky,  of  the  one  part,  and  McCalla  Thompson  of 
said  Cynthiana,  Harrison  County,  Kentucky,  of  the  second  part, 


532  'THOMPSON    V.    THOMPSON.  [CHAP,  YIII. 

witnesseth:  That,  whereas  the  said  Thompson  has  heretofore  inter- 
married with  Sarah  Jones,  the  daughter  of  said  party  of  the  first 
part,  and  for  and  in  consideration  of  the  premises  and  the  natural 
love  and  affection  which  the  party  of  the  first  part  has  and  entertains 
for  his  said  daughter  and  said  Thompson,  and  for  the  purpose  of 
advancing  said  Thompson  in  life,  the  party  of  the  first  part  has  bar- 
gained and  sold,  and  by  these  presents  doth  bargain  and  sell,  trans- 
fer, and  convey  to  said  McCalla  Thompson  all  that  certain  lot  or 
parcel  of  ground,  with  a  three  story  brick  house  thereon,  situated 
in  the  city  of  Cincinnati,  State  of  Ohio  (described). 

"  To  have  and  to  hold  said  property,  with  its  appurtenances,  rights, 
and  privileges,  unto  said  Thompson,  his  heirs  and  assigns,  forever. 

"In  testimony  of  which  I  hereunto  set  my  hand  and  seal  this  day 
and  year  above  written. 

"Robert  Jones,  [seal.]" 

White,  J.  Does  the  consideration  of  this  deed  constitute  a  good 
consideration  in  law?  If  it  would  have  been  sufficient  to  uphold  a 
covenant  to  stand  seized  under  the  Statute  of  Uses,  it  is  sufficient  to 
uphold  a  deed  executed  in  conformity  to  our  law. 

"Uses,"  says  Sanders,  "may  be  raised  either  upon  a  pecuniary 
consideration,  or  upon  what  is  called  a  good  consideration,  which  is 
that  of  blood  or  marriage.  Whatever  be  the  form  of  the  conveyance 
creating  and  transferring  a  use  upon  the  former  consideration,  it  is 
a  bargain  and  sale,  and  must  be  enrolled  as  such;  but  convej^ances 
raising  upon  or  by  virtue  of  the  latter,  are  termed  covenants  to  stand 
seized,  and  they  are  not  within  the  words  of  the  Statute  of  Enrolments, 
nor  within  the  policy  of  it;  because  the  consideration  of  blood  and 
marriage  is  of  a  public  nature."  "The  consideration  of  this  convey- 
ance is  the  foundation  of  it."  "Uses  can  only  be  raised  upon  a  cove- 
nant to  stand  seized  in  consideration  of  blood  or  marriage."  2  Sand, 
on  Uses  and  Tr.  (side)  96,  97. 

In  Sheppard's  Touchstone,  511,  512,  it  is  said  that  if  one  "in  con- 
sideration of  nature,  kindred,  blood,  or  marriage,  with  one's  self, 
or  any  of  his  blood,  .  .  .  covenant  to  stand  seized  to  the  use  of  him- 
self, his  wife,  children,  brothers,  sisters,  or  cousins,  or  their  wives, 
these  are  good  considerations,  and  the  uses  and  estates  thereupon 
and  thus  raised  and  made  are  good." 

The  foregoing  refers  to  existing  relations  among  kindred,  and  to 
existing  marriages  with  the  kindred  of  the  covenantor,  and  is  not 
hmited  to  marriages  to  be  had  on  the  faith  of,  or  in  consideration 
of  the  covenant.  This  is  apparent  from  the  context,  and  from  the 
difference,  the  author  remarks,  that  is  to  be  observed  between  the 
case  where  the  covenant  is  in  consideration  of  a  marriage  "to  he  had,^' 
and  the  other  cases. 

Thus  in  Bacon's  Abridgment,  speaking  of  marriage  as  a  consider- 
ation, it  is  said:  "With  respect  to  considerations  of  marriage:  a  man 


SECT.  I.]  NOTE.  533 

may  covenant  to  stand  seized  to  the  use  of  A,  his  wife,  and  the  con- 
sideration that  she  is  his  wife,  will  raise  a  good  estate  to  her,  for 
this  is  a  good  consideration  in  law."  "Likewise,  a  man  may  cove- 
nant to  stand  seized  to  the  use  of  A,  the  w\ie  of  his  brother,  in  con- 
sideration that  she  is  the  wife  of  his  brother,  and  this  shall  raise  a 
good  estate  to  her;  for  the  love  which  he  bears  toward  his  brother, 
extends  in  his  right  to  his  wife,"  10  Bacon's  Abr.  (Bounder's),  title 
Uses  and  Tr.  (E.)  Gov.  to  Stand  Seized,  p.  142;  2  ComjTi's  Dig.  Gov. 
(G.  3) ;  1  Spence's  Eq.  (side)  450. 

Again,  in  ComjTi's  Digest  (vol.  2,  p.  277,  tit.  Gov.  (G.  3),  under 
the  head,  "upon  what  consideration"  the  covenant  may  be  raised, 
it  is  said :  "  If ,  in  consideration  of  affection  to  his  brother,  he  covenants 
to  stand  seized  to  the  use  of  his  brother  and  his  wife  for  their  lives, 
this  extends  to  the  wife  of  his  brother.  So,  in  consideration  of  affec- 
tion to  his  son,  extends  to  the  vnie  of  his  son." 

Here  the  marriages  were  existing  at  the  time  of  the  creation  of  the 
estate;  there  was  no  relationship  by  blood  from  which  natural  love 
and  affection  could  arise;  but  there  was  love  and  affection  which  was 
recognized  as  sufficient,  arising  from  the  marriage  of  the  donees  to 
the  blood  of  the  covenantor;  in  the  first  case,  to  the  covenantor  him- 
self: in  the  second,  to  his  brother  and  to  his  son. 

That  marriage  as  a  consideration  is  not  limited  to  contemplated 
marriages  with  the  kindred  of  the  covenantor,  is  clearly  the  view 
taken  in  Bell  v.  Scammon,  15  N.H.  382,  395,  and  in  Gale  v.  Cohurn, 
18  Mich.  397,  401.  In  both  cases  the  deeds  were  made  to  sons-in- 
law,  and  they  were  declared  to  operate  as  covenants  to  stand  seized, 
though  the  daughters  had  died,  but  lea\dng  issue  of  the  marriage, 
before  the  deeds  were  made.  In  the  latter  case  it  was  held  that  the 
deed  could  operate  in  no  other  way,  and  it  was  upheld  by  the  court 
solely  on  the  ground  of  the  marriage  and  the  consanguinity  of  the 
children  of  the  covenantee  to  the  covenantor. 

[The  court  held  that  the  instrument  conveyed  the  land  therein 
described  to  McGalla  Thompson.] 

Note.  —  See,  contra,  Corwin  v.  Corwin,  6  N.Y.  342. 


NOTE. 


After  the  passage  of  the  Statute  of  Uses,  the  common  law  meth- 
ods of  conveyancing,  mentioned  in  Chapter  VI,  supra,  continued  to 
be  valid.  But  it  was  now  necessary  to  guard  against  a  resulting  use. 

Prior  to  the  passage  of  the  Statute,  if  A  enfeoffed  B  and  his  heirs, 
and  there  was  no  consideration  for  the  feoffment,  and  no  declaration 
of  the  use,  the  doctrine  of  equity  was  that  B  held  the  land  to  the  use 
of  A.  Bacon  said  (Statute  of  Uses,  p.  22):  "When  feoffments  were 


534  ROE    V.     TRANMER.  [cHAP.  VIH. 

made,  and  that  it  rested  doubtful  whether  it  were  an  use  or  a  pur- 
chase, because  purchases  were  things  notorious,  and  uses  were  things 
secret,  the  chancellor  thought  it  more  convenient  to  put  the  pur- 
chaser to  prove  his  consideration,  than  the  feoffor  and  his  heirs  to 
prove  the  trust;  and  so  made  the  intendment  towards  the  use,  and 
put  the  proof  upon  the  purchaser." 

After  the  passage  of  the  Statute,  this  rule  remained  in  force.  See 
Armstrong  v.  Wolsey,  2  Wils.  19.  It  followed  that  if  A  enfeoffed  B 
and  his  heirs,  the  use  resulted  to  A,  and  was  forthwith  converted  into 
the  legal  estate. 

A  resulting  use  could  be  prevented  by  having  a  consideration  paid 
for  the  conveyance,  or  by  having  a  recital  of  consideration  so  paid,  or 
by  having  a  declaration  of  the  use,  as  where  A  enfeoffed  B  and  his 
heirs,  to  their  own  use. 

If  A  conveyed  a  lesser  estate  than  he  had,  the  tenure  prevented  a 
resulting  use.  Thus,  if  A,  tenant  in  fee  simple,  enfeoffed  B  for  life. 

It  is  also  to  be  noted  that  the  common  law  methods  of  convey- 
ancing could  be  used  in  conjunction  with  the  Statute.  Thus  if  A 
enfeoffed  B  and  his  heirs  to  the  use  of  C  and  his  heirs.  This  was  the 
familiar  feoffment  to  uses.  The  use  raised  in  C  was  now  converted 
by  the  Statute  into  the  corresponding  legal  estate. 


ROE  V.  TRANMER. 

2  Wils.  75.     1757. 

Upon  the  trial  of  this  cause  it  appeared  in  evidence,  that  Thomas 
Kirby  being  seised  in  fee  of  the  lands  in  question  made  and  executed 
certain  deeds  of  lease  and  release.  The  ease  dated  November  9, 
1733,  made  between  the  said  Thomas  Kirby  of  the  one  part,  and  Chr. 
Kirby  his  brother  of  the  other  part,  whereby  it  is  witnessed  that  the 
said  Thomas  Kirby,  in  consideration  of  5s.  did  grant,  bargain  and 
sell  to  the  said  Chr.  Kirby,  his  executors,  administrators  and  assigns, 
the  lands  in  question;  to  have  and  to  hold  the  same  unto  the  said 
Chr.  Kirby,  his  executors,  administrators  and  assigns,  from  the  day 
before  the  date  thereof  for  the  term  of  one  year  under  a  pepper  com 
rent,  to  the  intent  that  by  virtue  of  these  presents,  and  by  force  of  the 
statute  for  transferring  uses  into  possession,  he  the  said  Christopher 
may  be  in  the  actual  possession  of  all  the  premises,  and  be  enabled  to 
take  and  accept  of  a  grant  and  release  of  the  reversion  and  inherit- 
ance thereof  to  them  and  their  heirs,  to,  for  and  upon  such  uses, 
intents  and  purposes,  as  in  and  by  the  said  grant  and  release  shall  be 
directed  or  declared.  In  witness,  etc.  executed  by  Thomas  Kirby. 

The  release  dated  November  10,  1733,  made  between  Thomas 
Kirby  of  the  one  part,  and  Chr.  Kirby  his  brother  of  the  other  part, 


SECT.  I.]  ROE    V.    TRANMER.  535 

witnesseth  that  for  the  natural  love  he  beareth  towards  his  said 
brother,  and  for  and  in  consideration  of  lOOZ.  to  the  said  Thomas 
Kirby  paid  by  the  said  Chr.  Kirby,  he  the  said  Thomas  Kirby  hath 
granted,  released  and  confirmed,  and  by  these  presents  doth  gi-ant, 
release  and  confirm  unto  the  said  Chr.  Kirby  in  his  actual  possession 
thereof  now  being,  by  virtue  of  a  bargain  and  sale  for  one  whole  year 
to  him  thereof  made  by  the  said  Thomas  Kirby,  by  indenture  dated 
the  day  next  before  the  day  of  the  date  hereof,  and  by  force  of  the 
statute  made  for  transferring  of  uses  into  possession,  after  the  death 
of  the  said  Thomas  Kirby,  all  that  one  close,  etc.  (the  premises  with- 
out any  words  of  limitation  to  the  releasee;)  To  have  and  to  hold  the 
said  premises  unto  the  said  Chr.  Kirby  and  the  heirs  of  his  body 
lawfully  begotten,  and  after  their  decease  to  John  Wilkinson,  eldest 
son  of  my  well-beloved  uncle  John  Wilkinson  of  North  Dalton  in  the 
county  of  York,  gentleman,  to  him  and  his  heirs  and  assigns,  and  to 
the  only  proper  use  and  behoof  of  him  the  said  John  Wilkinson  the 
younger,  his  executors,  administrators  or  assigns  for  ever,  he  the  said 
John  Wilkinson  the  younger  paying  or  causing  to  be  paid  to  the  child 
or  children  of  my  well-beloved  brother  Stephen  Kirby  the  sum  of 
200L  and  for  want  of  such  child  or  children,  then  to  the  child  or  chil- 
dren of  my  well-beloved  sister  Jane  Kirby,  and  for  want  of  such  issue, 
then  to  the  younger  children  of  my  well-beloved  uncle  John  Wilkinson 
of  North  Dalton  aforesaid,  and  for  want  of  such  younger  children, 
then  the  said  estate  abovementioned  to  be  free  from  the  pajTnent  of 
the  abovenamed  sum  of  200Z.  Then  the  releasor  covenants  that  he  is 
lawfully  seised  in  fee,  and  that  he  hath  good  right  and  full  power  to 
convey  the  premises  to  the  said  Chr.  Kirby,  and  also  that  it  may  and 
shall  be  lawful  to  and  for  the  said  Chr.  Kirby,  or  the  said  John  Wil- 
kinson the  younger,  from  and  after  the  death  of  him  the  said  Thomas 
Kirby,  peaceably  and  quietly  to  have,  hold,  use,  occupy,  possess  and 
enjoy  the  said  messuage,  lands  and  premises,  with  the  appurtenances, 
not  only  without  the  lawful  let,  suit,  etc.,  of  him  the  said  Thomas,  but 
all  others  claiming  under  him,  etc.,  free  from  all  incumbrances.  Then 
it  is  covenanted  by  all  the  parties,  that  all  fines  and  recoveries  and 
deeds  of  the  premises  levied,  suffered  or  executed  by  the  parties,  or 
any  of  them,  or  by  any  other  persons,  shall  be  and  enure  to  the  use  of 
the  said  Chr.  Kirby  and  his  heirs  of  his  body  lawfully  begotten,  and 
for  want  of  such  issue,  then  to  the  use  of  the  said  John  Wilkinson 
junior,  his  heirs  and  assigns  for  ever,  according  to  the  true  intent  of 
these  presents.   In  witness,  etc.   Executed  by  Thomas  Kirby. 

It  further  appeared  in  evidence,  that  Chr.  Kirby  on  the  10th  of 
November,  1733,  paid  to  the  said  Thomas  Kirby  20/.  in  money,  and 
gave  him  his  note  for  80/.  payable  to  the  said  Thomas  Kirby,  who 
signed  a  receipt  on  the  backside  of  the  said  deed  of  release  in  these 
words,  viz.,  Received  the  day  and  year  within  written  of  the  within 
named  Chr.  Kirby  the  sum  of  one  hundred  pounds,  being  the  full 


536  ROE    V.    TRANMER.  [cHAP.  VIII. 

consideration-money  within  mentioned  to  be  paid  to  me.    I  say 
received  by  me  Thomas  Kirby.  Witness  M.  J.  S.  T. 

It  further  appeared  in  evidence  that  Chr.  Kirby  died  without  issue 
in  1740,  and  that  John  Wilkinson  the  lessor  of  the  plaintiff  is  the 
same  John  Wilkinson  named  in  the  deed  of  release,  but  it  did  not 
appear  that  the  said  John  Wilkinson  had  notice  of  the  said  deeds  of 
lease  and  release  until  a  short  time  before  this  ejectment  was  bi-ought. 

This  being  the  case  for  the  consideration  of  the  court,  the  general 
question  is,  whether  the  lessor  of  the  plaintiff  has  a  title  to  recover 
upon  the  lease  and  release. 

It  has  been  argued  at  the  bar  three  times,  the  first  time  by  Serjeant 
Willes  for  the  lessor  of  the  plaintiff,  and  Serjeant  Foole  for  the 
defendant,  and  the  second  and  third  times  (because  of  a  new  judge) 
by  Serjeant  He  wit  for  the  plaintiff,  and  Sir  Samuel  Prime,  the 
King's  first  serjeant,  for  the  defendant. 

It  was  admitted  by  the  Serjeants  who  argued  for  the  plaintiff,  that 
the  lease  and  release  being  made  to  convey  to  Chr.  Kirby  an  estate 
in  fee-tail  to  commence  in  futuro,  viz.  after  the  death  of  the  releasor, 
cannot  operate  as  a  common  law  conveyance,  or  as  a  lease  and  release; 
but  they  insisted  that  the  release  should  take  effect  as  a  deed  of 
covenant  to  stand  seised  to  uses,  ut  res  magis  valeat  quam  pereat;  and 
cited  a  variety  of  cases  to  prove  it  had  every  requisite  necessary  to 
constitute  such  a  deed  of  covenant  to  stand  seised  to  uses,  that  is  to 
say,  1.  Here  is  a  sufficient  and  proper  consideration;  2.  A  deed;  3. 
The  covenantor  was  seised  in  fee;  4.  Here  are  apt  words,  for  the  word 
grant  of  itself  is  sufficient  in  such  a  deed;  and  5.  Here  is  a  manifest 
and  plain  intent. 

On  the  other  side  it  was  insisted  for  the  defendants,  1.  That  it 
plainly  appears  to  be  the  intent  of  the  parties  that  this  conveyance 
should  be  by  a  lease  and  release,  and  therefore  shall  not  operate  as  a 
covenant  to  stand  seised  to  uses.  Co.  Lit.  49  a.  And  as  the  release  is 
admitted  on  all  hands  to  be  void  for  the  reason  above,  nothing  passes 
thereby  to  Wilkinson  the  lessor  of  the  plaintiff.  2.  It  was  objected 
for  the  defendant,  that  Wilkinson  is  not  a  party  to  the  deed.  3.  That 
there  was  not  a  proper  consideration  of  blood  to  raise  an  use  to  him. 
4.  That  no  estate  at  all  passed  by  this  deed  to  Christopher  Kirby, 
out  of  which  the  estate  in  futuro  could  arise  or  come  to  Wilkinson  the 
plaintiff's  lessor. 

After  time  taken  to  consider,  the  court  were  all  of  opinion  that  the 
release  was  void  as  a  common  law  conveyance,  it  being  to  convey  a 
freehold  to  commence  in  futuro,  but  that  it  should  have  the  effect 
and  operation  of  a  covenant  to  stand  seised  to  uses;  and  in  Hilary 
term  31  Geo.  2,  Lord  Chief  Justice  Willes  gave  the  judgment  of  the 
whole  court  for  the  plaintiff. 

Willes,  C.  Justice.  It  is  admitted  and  agreed  on  all  hands  that 
this  deed  is  void  as  a  release,  because  it  is  a  grant  of  a  freehold  to 


SECT.  I.]  ROE    V.    TRANMER.  537 

commence  in  j'uturo:  and  therefore  the  only  question  is,  whether  it 
shall  take  effect  as  a  covenant  to  stand  seised  to  uses;  and  we  are  all 
of  opinion  that  it  shall  (my  brother  Bathurst,  not  being  here, 
authorized  me  to  say  he  is  of  the  same  opinion). 

Many  cases  have  been  cited  on  both  sides,  some  of  which  are 
very  inconsistent  with  one  another,  and  to  mention  them  all,  would 
rather  tend  to  puzzle  and  confound,  than  to  illustrate  the  matter  in 
question;  and  therefore  I  shall  only  take  notice  of  those  things  we 
think  most  material,  and  of  some  few  cases  nearest  in  point  for  our 
judgment. 

It  appears  from  the  cases  upon  this  head,  in  general,  that  the 
judges  have  been  astiUi  to  carry  the  intent  of  the  parties  into  execu- 
tion, and  to  give  the  most  hberal  and  benign  construction  to  deeds 
ut  res  magis  valeat  quam  pereat.  I  rely  much  upon  Sheppard's  Touch- 
stone of  common  assurances  82,  83  (which  is  a  most  excellent  book), 
where  he  says,  when  the  intent  is  apparent  to  pass  the  land  one  way 
or  another,  there  it  may  be  good  either  way. 

By  the  word  intent,  is  not  meant  the  intent  of  the  parties  to  pass 
the  land  by  this  or  that  particular  kind  of  deed,  or  by  any  particular 
mode  or  form  of  conveyance,  but  an  intent  that  the  land  shall  pass 
at  all  events  one  way  or  other. 

Lord  HoBART  (who  was  a  very  great  man)  in  his  Reports,  fo.  277, 
says,  "I  exceedingly  commend  the  judges  that  are  curious  and 
almost  subtil,  astuti,  to  invent  reason  and  means  to  make  acts 
according  to  the  just  intent  of  the  parties,  and  to  avoid  wrong  and 
injury,  which  by  rigid  rules  might  be  wrought  out  of  the  act"; and 
my  Lord  Hale  in  the  case  of  Crossing  and  Scudamore,  1  Vent.  141, 
cites  and  approves  of  this  passage  in  Hobart. 

Although  formerly,  according  to  some  of  the  old  cases,  the  mode  of 
form  of  a  conveyance  was  held  material,  yet  in  later  times,  where  the 
intent  appeai-s  that  the  land  shall  pass,  it  has  been  ruled  otherwise; 
and  certainly  it  is  more  considerable  to  make  the  intent  good  in  pass- 
ing the  estate,  if  by  any  legal  means  it  may  be  done,  than  by  consid- 
ering the  manner  oj  passing  it,  to  disappoint  the  intent  and  principal 
thing,  which  was  to  pass  the  land.  Osman  and  Sheaf  e,  371.  Upon  this 
ground  we  go. 

We  are  all  of  opinion  that  in  this  case  there  is  every  thing  necessary 
to  make  a  good  and  effectual  covenant  to  stand  seised  to  uses.  First, 
Here  is  a  deed.  Secondly,  Here  are  apt  words,  the  word  grajit 
alone  would  have  been  sufficient,  but  there  are  other  words  besides, 
which  are  material,  viz.,  A  covenant  that  the  grantor  has  power  to 
grant,  and  a  covenant  that  all  fines,  recoveries,  etc.,  of  these  lands 
shall  enure  to  the  uses  in  the  deed.  Thirdly,  The  covenantor  was 
seised  in  fee.  Fourthly,  Here  appears  a  most  plain  intent  that  Wilkin- 
son the  lessor  of  the  plaintiff  should  have  the  lands  in  case  Chr. 
Kirby  died  without  issue.  And  lastly,  Here  is  a  proper  consideration 


538  ROE   V.    TRANMEB.  [cHAP.  VIII. 

to  raise  an  use  to  the  lessor  of  the  plaintiff,  for  the  covenantor  in  the 
deed  names  him  to  be  the  eldest  son  of  his  well-beloved  uncle;  these 
are  all  the  circumstances  necessary  to  make  a  good  deed  of  covenant 
to  stand  seised  to  uses. 

Note.  —  See,  accord,  Horton  v.  Sledge,  29  Ala.  478,  497;  Rogers  v. 
Sisters  of  Charity,  97  Md.  550;  Thatcher  v.  Omans,  3  Pick.  (Mass.) 
521  (followed  in  Carr  v.  Richardson,  157  Mass.  576);  Bank  of  the 
United  States  v.  Housman,  6  Paige  (N.Y.)  526;  Foster  v.  Dennison, 
9  Ohio  121;  Eckman  v.  Eckman,  68  Pa.  460. 


SSCT.  II.]  NOTE.  339 


SECTION  2. 

EFFECT  OF  THE  STATUTE  UPON  THE  LIMITATION  OF 
FUTURE  INTERESTS. 


FEAKNE,  CONTINGENT  REMAINDERS,   p.  274, 

When  it  is  said  that  a  subsequent  estate  limited  on  a  condition  is 
void,  the  rule  must  be  understood  only  of  estates  limited  in  convey- 
ances at  common  law.  .  .  .  Limitations  of  this  nature  may  take  effect 
by  way  of  use,  for  a  use  may  be  limited  to  cease  as  to  one  person  upon 
a  future  event,  and  to  vest  in  another. 


WOODLIFF  V.  DRURY. 

Cro.  Eliz.  439.     1595. 

Trespass.  After  verdict,  Coke,  Attorney  General,  moved  in 
arrest  of  judgment.  The  case  upon  the  pleading  was,  That  one  made 
a  feoffment;  and  it  was  declared  by  the  indenture,  that  it  should  be 
to  the  use  of  himself  and  A,  his  feme  that  should  be,  after  their  m^-- 
riage,  and  of  the  heirs  of  their  bodies;  and  he  took  A  to  feme.  Whether 
she  should  take  by  the  limitation  of  this  use,  was  the  question.  And 
he  moved  that  she  should  not;  for  presently  by  this  feoffment,  the 
fee  is  in  the  baron  by  the  possession,  executed  to  the  use  which  he  had 
before  the  marriage,  which  cannot  after  the  marriage  be  divided,  and 
made  an  estate  tail  in  him,  for  he  had  the  fee  in  him  until  the  mar- 
riage. But  all  the  justices  held,  that  although  he  be  seised  in  fee  in 
the  mean  time,  as  in  truth  he  is,  yet  by  the  marriage  the  new  use 
shall  arise  and  vest.  And  judgment  was  given  accordingly  to  the 
plaintiff.  Vide  Statute  27  Hen.  8,  c.  10,  for  transferring  uses  into 
possession. 


NOTE. 

In  respect  to  the  limitation  of  the  use,  that  is  to  say,  in  respect  to 
the  creation  and  transfer  of  equitable  estates,  equity  was  not  bound 
by  the  rules  governing  legal  estates. 

Thus  equity  permitted  the  use  to  be  vested  in  one  person,  but, 
upon  the  happening  of  an  event,  to  shift  over  to  another  person.  A 


640  NOTE.  [chap,  viil 

enfeoffed  B  and  his  heirs  to  the  use  of  C  and  his  heirs,  but,  if  C  should 
die  without  issue  living  at  the  time  of  his  death,  then  to  the  use  of 
D  and  his  heirs.  When  C  died,  without  issue  then  living,  C's  estate 
was  cut  short,  and  an  estate  to  D  was  substituted.  In  equity,  the 
benefit  of  a  condition  could  be  given  to  a  stranger. 

Again.  A  enfeoffed  B  and  his  heirs  to  the  use  of  C  and  his  heirs, 
from  and  after  the  following  Christmas.  This  was  not  objectionable 
as  an  attempt  to  create  a  freehold  estate  in  futuro.  The  use  resulted, 
or  came  back  to  A  in  fee  (c/.  the  creation  of  a  legal  reversion  in  fee), 
but,  at  the  following  Christmas,  without  further  act  of  the  parties, 
A's  equitable  estate  was  cut  short,  and  an  estate  to  C  was  substi- 
tuted. 

Again.  A  enfeoffed  B  and  his  heirs  to  the  use  of  C  for  life,  and, 
one  day  after  C's  death,  to  the  use  of  D  and  his  heirs.  The  use  was 
in  C  for  life,  resulting  use  in  A  in  fee,  and,  one  day  after  C's  death, 
A's  equitable  estate  was  cut  short,  and  an  estate  to  D  was  substi- 
tuted. 

In  the  examples  above  put,  the  method  of  conveyancing  was  a 
feoffment  to  uses.  But  the  same  results  could  be  obtained  by  rais- 
ing uses  by  bargain  and  sale,  or  covenant  to  stand  seised. 

Now  the  Statute  of  Uses  did  not  provide  that  all  attempts  to 
create  uses  should  be  void.  It  allowed  the  use  to  be  created,  but 
provided  that,  forthwith  it  was  created,  it  should  be  converted  into 
a  corresponding  legal  right. 

The  liberality  existing  in  equity,  before  the  passage  of  the  Statute, 
with  respect  to  the  limitation  of  future  interests  was  therefore  now 
carried  over  into  the  law. 

But  to  this  statement  one  qualification  must  be  made.  Suppose 
the  use  was  given  to  A  for  life,  and  then  to  the  children  of  A  li^^ng 
at  the  death  of  the  survivor  of  A  and  B.  Here  the  limitation  to  the 
children  might,  by  chance,  have  taken  effect,  in  orderly  succession, 
upon  the  determination  of  A's  life  estate.  In  other  words,  it  might, 
by  chance,  have  taken  effect  as  a  remainder,  —  following  on  after 
the  preceding  estate,  and  not  cutting  the  preceding  estate  short. 
In  such  case,  it  was  decided  that  the  Umitation  must  be  construed 
as  a  remainder,  and,  being  a  remainder,  must  be  subject  to  all  the 
rules  governing  contingent  remainders.  Therefore  if  A  died,  B  liv- 
ing, the  remainder  to  the  children  was  destroyed,  for  it  was  a  con- 
tingent remainder  in  its  inception  and  had  not  vested  at  or  before 
the  determination  of  the  prior  estate.  See  Hole  v.  Escott,  2  Keen  444. 


SECT.  III.]  MATTHEWS    V.    WARD's    LESSEE.  541 


SECTION  3. 
UNEXECUTED  USES. 


TYRREL'S   CASE. 

Dyer,  155.     1557. 

Jane  Tyrrel,  widow,  for  the  sum  of  four  hundred  pounds  paid 
by  G.  Tyrrel  her  son  and  heir  apparent,  by  indenture  enrolled  in 
chancery  in  the  4th  year  of  E.6,  bargained,  sold,  gave,  granted,  cove- 
nanted, and  concluded  to  the  said  G.  Tyrrel  all  her  manors,  lands, 
tenements,  &c.,  to  have  and  to  hold,  &c.,  to  the  said  G.  T.  and  his 
heirs  forever  to  the  use  of  the  said  Jane  during  her  life,  without  im- 
peachment of  waste;  and  immediately  after  her  decease  to  the  use  of 
the  said  G.  T.,  and  the  heirs  of  his  body  lawfully  begotten,  and  in 
default  of  such  issue,  to  the  use  of  the  heirs  of  the  said  Jane  forever. 
Quaere  well  whether  the  limitation  of  those  uses  upon  the  habendum 
are  not  void  and  impertinent,  because  an  use  cannot  be  springing, 
drawn,  or  reserved  out  of  an  use,  as  appears  prima  fade.  And  here 
it  ought  to  be  first  an  use  transferred  to  the  vendee  before  that  any 
freehold  or  inheritance  in  the  land  can  be  vested  in  him  by  the  en- 
rolment, &c.  And  this  case  has  been  doubted  in  the  Common  Pleas 
before  now;  ideo  quaere  legem.  But  all  the  judges  of  C.  B.  and  Saun- 
ders, Chief  Justice,  thought  that  the  limitation  of  uses  above  is  void, 
&c.,  for  suppose  the  Statute  of  Enrolments  [cap.  16]  had  never  been 
made,  but  only  the  Statute  of  Uses  [cap.  10]  in  27  H.  8,  then  the  case 
could  not  be,  because  an  use  cannot  be  engendered  of  an  use,  &c. 


MATTHEWS   v.  WARD'S  LESSEE. 

10  Gill  &  J.  (Md.)  443.     1839. 

This  was  an  action  of  ejectment,  commenced  on  the  12th  August, 
1837,  by  Sarah  Ward,  Smith  Boston  and  others,  lessors  of  the  plain- 
tiff, against  Henry  Matthews,  the  tenant  in  possession,  for  a  lot  in 
the  city  of  Annapolis.  The  defendant  appeared  and  pleaded  not 
guilty,  and  the  parties  agreed  upon  the  following  statement  of  facts: 

It  is  admitted  in  this  case,  that  at  and  prior  to  the  20th  of  Octo- 
ber, 1817,  Leonard  Scott  and  Sarah  Scott  his  wife  were  seized  in  fee 
simple  of  the  lot  and  premises  in  the  declaration  in  this  action  men- 
tioned, and  being  so  seized,  that  they  executed,  acloiowlcdged  and 


542  MATTHEWS    V.    WARD's    LESSEE.  [CHAP.  VTIL 

delivered  the  following  deed,  which  was  recorded  in  due  time  among 
the  land  records  of  Anne  Arundel  County:  — 

This  Indenture,  made  this  twentieth  day  of  October,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  seventeen,  between 
Leonard  Scott  and  Sarah  Scott  his  wife,  of  the  city  of  Annapolis, 
in  Anne  Arundel  County  and  State  of  Maryland,  of  the  one  part, 
and  Henry  Price,  of  the  city,  county,  and  State  aforesaid,  of  the 
other  part,  witnesseth,  that  the  said  Leonard  Scott  and  Sarah  Scott 
his  wife,  for  and  in  consideration  of  the  sum  of  five  dollars  to 
them  in  hand  paid,  the  receipt  whereof  they  do  hereby  acknowledge, 
have,  and  each  of  them  hath  given,  granted,  bargained  and  sold, 
and  by  these  presents  do,  and  each  of  them  doth,  give,  grant,  bar- 
gain and  sell,  unto  the  said  Henry  Price,  his  heirs  and  assigns,  a  part 
of  a  house  and  lot,  piece  or  parcel  of  ground,  situate,  Ijdng  and  being 
in  the  city  of  Annapolis,  which  was  formerly  occupied  by  Captain 
James  West  as  a  tavern,  and  described  as  follows:  Beginnmg  at  a 
brick  partition  wall  on  Church  Street,  about  midway  the  house,  then, 
etc.;  to  have- and  to  hold  the  said  lot,  piece  or  parcel  of  ground  and 
premises  above  described,  and  the  goods  and  chattels  before  men- 
tioned, unto  the  said  Henry  Price,  his  heirs  and  assigns  forever;  in 
trust  to  and  for  the  uses,  intents  and  purposes,  that  is  to  say,  in 
trust  for  the  use  of  the  said  Leonard  Scott  and  Sarah  Scott  his  wife, 
for  and  during  their  joint  natural  lives,  and  the  life  of  the  sur\'ivor 
of  them,  and  after  the  death  of  the  said  Leonard  Scott  and  Sarah 
Scott  his  wife,  in  trust  as  therein  provided. 

Archer,  J.,  delivered  the  opinion  of  the  court. 

It  is  contended  by  the  appellant  that  the  deed  from  Scott  and 
wife  to  Price  is  a  deed  of  feoffment;  and  as  such,  the  legal  title  of  the 
property  vested  by  the  Statute  of  Uses  in  John  Hemy  Scott  in  fee; 
that  the  remainder  over  as  being  too  remote  was  void,  and  that  upon 
the  death  of  John  Henrj'  Scott  without  heirs,  the  property  of  course 
became  liable  to  escheat. 

If  by  the  words  of  the  deed  and  the  intention  of  the  parties  we 
could  construe  this  as  a  deed  of  feoffment,  there  would  arise  no  ob- 
jection to  such  a  result,  from  an  absence  of  evidence  of  livery  of 
seizin.  The  ancient  law  on  the  subject  of  feoffments,  which  demanded 
livery  of  seizin  to  give  them  efficacy,  we  consider  as  having  been 
abolished,  and  that  now,  enrollment  takes  the  place  of  livery,  and 
is  equivalent  to  it.  The  act  of  1766  provided  for  the  enrollment  of 
deeds  of  feoffment,  as  well  as  other  deeds,  and  the  act  of  1715  de- 
clared that  livery  should  not  be  necessary  where  the  deed  was  en- 
rolled. Anterior  to  the  law  of  1766,  ch,  14,  although  the  legislature 
had  rendered  livery  of  seizin  unnecessary,  where  the  deed  was  en- 
rolled, it  omitted  making  any  provision  for  the  enrollment  of  deeds  of 
feoffment  until  1766;  hence  it  was  decided  by  the  General  Court,  in 
I  liarr.  &  John.  527,  that  a  deed  executed  in  1726  could  not  operate 


SECT.  III.]  WASHBURN,    REAL    PROPERTY.  543 

as  a  deed  of  feoffment  without  proof  of  livery  of  seizin,  or  such  length 
of  possession  as  would  give  rise  to  a  presumption  of  livery  of  seizin. 
Vide  Carroll  v.  Norwood^  1  Harr.  &  John.  178. 

Although  since  the  act  of  1766,  ch.  14,  which  provided  for  the 
enrollment  of  deeds  of  feoffment  and  other  conveyances,  livery  of 
seizin  is  not  necessary  to  a  deed  of  feoffment,  yet  whether  this  be  a 
deed  of  feoffment  or  a  deed  of  bargain  and  sale,  is  a  question  of  con- 
struction, depending  on  the  words  of  the  instrument.  There  is  no 
doubt  but  that  it  would  be  capable  of  transferring  the  estate,  either 
as  a  feoffment,  or  a  deed  of  bargain  and  sale  —  the  operative  words 
of  each  species  of  conveyance  being  used.  But  the  question  is  not 
whether,  if  it  cannot  operate  in  one  way,  it  shall  in  another;  but 
whether  the  conveyance  is  in  point  of  law  a  feoffment,  or  a  bargain 
and  sale. 

By  the  usage  and  practice  of  the  State,  bargains  and  sales,  as  a 
mode  of  passing  estates,  have  nearly  superseded  all  other  modes  of 
convej^ance,  and  we  do  not  believe  it  was  at  all  designed,  in  the  exe- 
cution of  the  deed  under  consideration,  to  deviate  from  this  accus- 
tomed mode.  Nothing  could  more  unequivocally  impress  a  distinc- 
tive character  on  the  instrument,  than  the  words  which  have  been 
used:  the  terms  "bargained  ayid  sold"  follow  the  words  "given  and 
granted,"  and  qualify  the  mode  of  the  gift  and  grant,  and  show  that 
it  was  by  a  bargain  and  sale;  and  it  is  said  that  the  insertion  of  the 
words  "bargain  and  sale,"  in  conveyances  by  lease  and  release,  were 
inserted  among  the  operative  words  of  this  conveyance,  that  the 
lease  might  be  treated  as  a  bargain  and  sale,  and  not  a  lease  at  the 
conmion  law.  Cornish  on  Uses,  74.  Other  considerations  might  be 
adduced  from  the  limitations  of  the  deed,  conducing  to  the  same 
conclusion,  that  this  is  a  deed  of  bargain  and  sale;  but  it  is  perhaps 
unnecessary  to  advert  to  them,  as  the  above  view  strikes  us  as  satis- 
factory. 

If  this  be  a  deed  of  bargain  and  sale,  as  we  think  it  is,  then  the 
use  was  executed  in  the  bargainee,  and  the  limitations  to  use  are 
merely  trusts  in  chancery,  and  the  cestuis  que  trust  are  seized  only 
of  an  equitable  estate. 


WASHBURN,  REAL  PROPERTY. 

Book  II,  p.  162. 

It  was  held,  that  as  a  use  was  executed  by  uniting  the  seisin  which 
was  in  one,  with  the  use  which  was  in  another,  as  there  could  be  no 
seisin,  properly  speaking,  of  a  use;  if  there  were  a  feoffment  to  A, 
to  the  use  of  B,  to  the  use  of  C,  the  seisin  in  A  passed  to  and  was 
executed  to  the  use  in  B.  But  as  only  a  use  was  given  to  B,  it  was 


544  SYMSON    V.    TURNER.  [cHAP.  Vni. 

held,  that  the  seisin  v.hich  the  statute  united  to  the  use  in  B,  did 
not  pass  from  him  to  C,  and  it  consequently  left  the  seisin  in  B,  as 
the  legal  o^\^ler.  In  order,  however,  to  give  effect  to  the  second  part 
of  the  limitation,  equity  came  in  and  required  B  to  hold  the  estate  to 
the  use  of  C,  and  called  this  a  trust. 


DOE  V.   PASSINGHAM. 

6  B.  &  C.  305.     1827. 

Lands  were  released  to  Sir  Watkin  Williams  Wynne  and  Edward 
Lloyd,  tenants  for  years  in  said  land,  "to  have  and  to  hold  the  said 
premises  with  their  appurtenances,  unto  the  said  Sir  Watkin  Wil- 
liams Wyime  and  Edward  Lloyd,  their  heirs  and  assigns;  to  the  only 
proper  use  and  behoof  of  them  the  said  Sir  Watkin  WilUams  Wynne 
and  Edward  Lloyd,  their  heirs  and  assigns  for  ever,  upon  trust, 
nevertheless,  and  subject  to  the  several  uses,  intents  and  purposes 
thereinafter  mentioned,  that  is  to  say,  to  the  use  of  the  said  Gwin 
Lloyd  and  his  heirs,"  etc.  The  question  was  whether  the  uses  to 
Gwin  Lloyd,  etc.,  were  executed. 

HoLROYD,  J.  Upon  the  first  perusal  of  the  deed  in  question  I  had 
no  doubt  that  the  legal  estate  was  vested  in  the  trustees,  having 
always  understood  that  an  use  cannot  be  limited  upon  an  use;  and 
although  I  was  struck  by  the  ingenuity  of  the  distinction  pointed 
out  by  Mr.  Taunton,  yet  upon  further  consideration  it  appears  to 
me  that  his  argument  does  not  warrant  it.  The  argument  is,  that 
as  the  trustees  did  not  in  the  first  instance  take  to  the  use  of  another, 
but  of  themselves,  they  were  in  by  the  common  law,  and  not  the  stat- 
ute; that  the  first  use  was,  therefore,  of  no  effect,  and  the  case  was  to 
be  considered  as  if  the  deed  had  merely  contained  the  second  limi- 
tation to  uses.  But  that  is  not  so,  for  although  it  be  true  that  the 
trustees  take  the  seisin  by  the  common  law,  and  not  by  the  statute, 
yet  they  take  that  seisin  to  the  use  of  themselves,  and  not  to  the 
use  of  another,  in  which  case  alone  the  use  is  executed  by  the  statute. 
They  are,  therefore,  seised  in  trust  for  another,  and  the  legal  estate 
remains  in  them. 


SYMSON  V.  TURNER. 

1  Eq.  Cas.  Ab.  383,  note.     1700. 

But  notwithstanding  this  statute  there  are  .  .  .  ways  of  creating 
an  use  or  a  trust,  which  still  remains  as  at  common  law,  and  is  a 
creature  of  the  court  of  equity,  and  subject  only  to  their  control  and 


SECT.   III.]  AVER    V.    RITTER.  545 

direction:  Where  lands  are  limited  to  trustees  to  receive  and  pay 
over  the  rents  and  profits  to  such  and  such  persons;  for  here  the 
lands  must  remain  in  them  to  answer  these  purposes. 

Note.  —  In  Meacham  v.  Steele,  93  III.  135,  the  court  said  (p.  145) : 
"The  mere  fact  that  the  cestui  que  trust  has  the  entire  beneficial  in- 
terest in  the  trust  estate  is  no  test  in  determining  whether  the  bene- 
ficial interest  is  a  trust  or  a  use.  To  hold  so  would  be  to  abolish  all 
distinction  between  a  trust  and  an  use.  Where  the  conveyance  im- 
poses on  the  trustee  active  duties  with  respect  to  the  trust  estate, 
such  as  to  sell  and  convert  it  into  money,  or  to  lease  the  same  and 
collect  the  rents,  issues  and  profits  thereof,  and  pay  them  over  to  the 
beneficiary,  it  creates  a  trust  which  the  statute  does  not  execute. 
But,  on  the  other  hand,  where  the  estate  is  conveyed  to  one  person 
simply  for  the  use  of  another,  or  to  the  intent  that  the  latter  shall 
have  the  rents,  issues  and  profits  thereof,  the  conveyance  creates  an 
use  which  the  statute  does  execute,  for  in  such  cases  the  trustee  has 
no  duty  to  perform  with  respect  to  the  estate  conveyed." 


AYER  V.   RITTER. 

29  S.C.  135.     1888. 

This  was  an  action  by  Wilham  H.  Ayer  against  H.  J.  Ritter,  for 
the  recovery  of  the  Campfield  plantation,  of  which  the  defendant 
was  in  possession.  The  Circuit  Judge  ordered  a  non-suit,  as  the  plain- 
tiff, claiming  under  the  will  of  his  grandfather,  Lewis  M.  Ayer, 
(stated  in  the  opinion,)  had  produced  no  deed  to  himself  from  the 
executors,  and  therefore  had  no  legal  title.  Plaintiff  appealed. 

Mr.  Justice  McI\rER.  This  was  an  action  to  recover  possession 
of  real  estate,  in  which  the  plaintiff  claimed  title  under  the  will  of 
the  late  Lewis  M.  Ayer.  The  clause  of  the  will  is  as  follows:  "My 
son,  Zacheus  Ayer,  has  lived  on  my  Campfield  plantation  for  the  last 
thirty  years  as  my  overseer  on  said  plantation,  with  liberty  to  use 
the  income  of  the  property  to  support  his  family,  and  it  is  my  wish 
that  he  be  allowed  to  continue  to  do  so  as  long  as  he  thinks  proper; 
that  is  to  say,  I  give,  devise,  and  bequeath  to  my  executors  herein- 
after named,  my  said  Campfield  plantation,"  together  with  sundry 
articles  of  personal  property,  including  the  slaves  on  the  place,  "in 
trust  nevertheless  that  my  said  executors  shall  apply  the  income  of 
the  property  above  mentioned  in  this  item,  solely  and  exclusively  to 
the  support  and  maintenance  of  my  said  son  Zacheus  and  his  family 
during  his  natural  life  (said  income  not  to  be  subject  to  his  debts  or 
contracts),  and  after  his  death,  in  further  trust,  to  convey  and  de- 
liver to  William  Henry  Ayer  (the  eldest  son  of  Zacheus)  the  saic 


546  ATER   V.    RITTER.  [CHAP.  VIH. 

Campfield  plantation,"  together  with  one-sixth  part  of  the  slaves 
and  all  of  the  other  personal  property  above  mentioned,  "to  be  the 
absolute  property  of  the  said  WilHam  Henry  Ayer,  and  to  convey 
and  deliver  the  remaining  other  five-sixths  of  the  said  slaves  to  the 
other  five  children  of  Zacheus,  so  as  to  divide  them  equally  among 
said  five  children  in  fee  simple." 

The  land  in  controversy  is  claimed  as  part  of  said  Campfield  plan- 
tation, and  the  plaintiff  having  failed  to  introduce  any  conveyance 
from  the  executors  for  the  said  land,  the  defendant  moved  for  a  non- 
suit, upon  the  ground  that  the  plaintiff  had  failed  to  introduce  any 
evidence  showing  title  in  himself  to  the  land  in  dispute.  The  motion 
was  granted,  and  plaintiff  appeals  upon  the  grounds  set  out  in  the 
record,  which  need  not  be  repeated  here,  as  the  only  question  raised 
by  the  appeal  is  whether  a  conveyance  from  the  executors  was  neces- 
sary to  invest  the  plaintiff  with  the  legal  title  to  the  land  in  dispute; 
and  this  depends  upon  the  inquiry  whether,  under  the  terms  of  the 
testator's  will  creating  a  trust  in  favor  of  the  plaintiff,  the  legal  title 
passed  directly  to  the  plaintiff  by  the  operation  of  the  statute  of  uses, 
rendering  a  conveyance  from  the  executors  unnecessary,  or  whether 
the  legal  title  remained  in  the  executors  as  trustees  under  the  will. 

This  question  has  been  considered  by  this  court  in  several  recent 
cases,  and  it  has  been  uniformly  held  "that  the  statute  will  not  exe- 
cute the  use  as  long  as  there  is  anything  remaining  for  the  trustee  to 
do,  which  renders  it  necessary  that  he  should  retain  the  legal  title 
in  order  fully  to  perform  the  duties  imposed  upon  him  by  the  trust." 
Bowen  v.  Humphreys,  24  S.C.  452.  Accordingly  in  that  case  it  was 
held  that  where  land  is  devised  to  trustees  to  divide  the  same  equally 
and  deliver  possession  to  four  children  of  testator,  the  legal  title 
remained  in  the  trustees  until  those  duties  were  performed,  and  hence 
that  they  were  the  proper  parties  to  bring  an  action  for  the  recovery 
from  a  third  person  of  the  land  so  devised.  In  Huckabee  v.  Newton, 
23  S.C.  291,  land  was  conveyed  to  a  trustee  in  trust  to  permit  L. 
to  enjoy  the  land  during  her  natural  life,  without  rendering  rent  or 
hire,  and  after  her  death  that  the  said  trustee^ould  convey  the  land 
to  her  children  then  living,  or  to  the  children  of  such  as  might  be 
dead,  in  equal  shares;  and  it  was  held  that  this  duty  to  convey  ren- 
dered it  necessary  for  the  legal  title  to  remain  in  the  trustees,  and 
hence  the  statute  of  uses  did  not  apply.  In  Bristow  v.  McCall,  16 
S.C.  545,  a  testator  devised  his  real  estate  to  trustees  for  the  use 
and  benefit  of  his  son  E.  and  his  daughter  D.,  with  directions  to  di- 
vide the  same  equally  between  said  E.  and  D.,  and  permit  each  to 
enjoy  his  or  her  half  in  severalty  during  his  or  her  natural  fife,  and 
upon  the  death  of  either  to  divide  the  share  of  the  one  so  d>ing  among 
his  or  her  children  equally.  Held,  that  the  duties  thus  imposed  upon 
the  trustees  rendered  it  necessary  that  the  legal  title  should  remain 
in  them,  and  prevented  the  operation  of  the  statute  of  uses.   In  all 


SECT.  III.]  RAMSAY    V.    MARSH.  547 

these  cases  the  rule  above  stated  has  been  uniformly  recognized  and 
applied. 

The  judgment  of  this  court  is,  that  the  judgment  of  the  Circuit 
Court  be  afl&rmed. 


RAMSAY  V.   MARSH. 

2  McCord  (S.C.)  252.     1822.  , 

[Another]  mode  of  creating  a  trust  not  executed  by  the  statute 
is,  where  a  term  for  years  is  granted  to  one  to  the  use  or  in  trust  for 
another.  The  legal  estate  in  such  case  will  not  be  executed  by  the 
statute  in  the  cestui  que  use.  The  reason  assigned  is,  that  no  one 
can  be  said,  according  to  technical  rule,  to  be  seized  of  a  term  — 
seisin  ex  vi  termini,  importing  a  freehold,  and  the  words  of  the  statute 
being —  "where  any  person  is  seized  to  the  use  of  another's." 

Note.  — This  principle  was  applied  in  Slevlin  v.  Brown,  32  Mo. 
176. 

Of  course,  a  use  raised  on  a  chattel  or  a  chose  in  action  is  not 
executed. 


BOOK  VI. 

RIGHTS  INCIDENT  TO  THE  OWNERSHIP 
•      OF  LAND,  OR  ESTATES  THEREIN. 


CHAPTER   I. 
THE  LAND  ITSELF. 


DOUGHERTY  v.  STEPR 

1  Devereux  &  Battle,  Law  (N.C.)  371.     1835. 

This  was  an  action  of  trespass  quare  clausum  fregit,  tried  at  Bun- 
combe on  the  last  circuit,  before  his  Honor  Judge  Martin.  The 
only  proof  introduced  by  the  plaintiff  to  establish  an  act  of  trespass 
was,  that  the  defendant  had  entered  on  the  unenclosed  land  of  the 
plaintiff,  with  a  surveyor  and  chain  carriers,  and  actually  surveyed 
a  part  of  it,  claiming  it  as  his  own,  but  without  marking  trees  or  cut- 
ting bushes.  This,  his  Honor  held  not  to  be  a  trespass,  and  the  jury, 
under  his  instructions,  found  a  verdict  for  the  defendant,  and  the 
plaintiff  appealed. 

RuFFiN,  Chief  Justice.  In  the  opinion  of  the  court,  there  is  error 
in  the  instructions  given  to  the  jury.  The  amount  of  damages  may 
depend  on  the  acts  done  on  the  land,  and  the  extent  of  injury  to  it 
therefrom.  But  it  is  an  elementary  principle,  that  every  unauthor- 
ized, and  therefore  unlawful  entry,  into  the  close  of  another,  is  a  tres- 
pass. From  every  such  entry  against  the  will  of  the  possessor,  the 
law  infers  some  damage;  if  nothing  more,  the  treading  down  the 
grass  or  the  herbage,  or  as  here,  the  shrubbery.  Had  the  locus  in  quo 
been  under  cultivation  or  enclosed,  there  would  have  been  no  doubt 
of  the  plaintiff's  right  to  recover.  Now  our  courts  have  for  a  long 
time  past  held,  that  if  there  be  no  adverse  possession,  the  title  makes 
the  land  the  owner's  close.  Making  the  survey  and  marking  trees, 
or  making  it  without  marking,  differ  only  in  the  degree,  and  not  in 
the  nature  of  the  injury.  It  is  the  entry  that  constitutes  the  trespass. 
There  is  no  statute,  nor  rule  of  reason,  that  will  make  a  wilful  entry 
into  the  land  of  another,  upon  an  unfounded  claim  of  right,  inno- 
cent, which  one,  who  set  up  no  title  to  the  land,  could  not  justify  or 


CHAP.  I.]  FOLEY    V.    WYETH.  549 

excuse.   On  the  contrary,  the  pretended  ownership  aggravates  the 
wrong.  Let  the  judgment  be  reversed,  and  a  new  trial  granted. 
Per  Curiam.  Jvdgment  reversed. 

Note.  —  In  Maye  v.  Tappan,  23  Cal.  306,  the  court  said  (p.  307) : 
"  It  appears  that  the  plaintiffs  and  defendants  are  the  owners  of 
adjoining  mining  claims,  which  are  worked  by  deep  underground 
:unnels.  The  fact  that  the  defendants  mined  over  the  dividing  line 
between  the  claims,  and  worked  out  a  portion  of  the  mining  ground 
of  the  plaintiffs,  is  not  disputed;  but  they  contend  that  it  was  not 
done  willfully  or  intentionally,  but  in  ignorance  of  the  locality  of  the 
dividing  line,  between  the  claims,  under  the  surface;  and  that  they 
were  led  to  work  over  the  line,  by  the  representations  of  one  of  the 
plaintiffs,  as  to  its  locahty,  in  relation  to  the  tunnel  and  the  place 
they  were  working.  On  the  trial,  the  plaintiffs  objected  to  all  e-vd- 
dence  showing  that  the  defendants  were  ignorant  of  the  location 
of  this  dividing  line;  but  the  court  overruled  the  objection,  and 
permitted  several  of  the  defendants  to  testify  to  those  facts,  and 
this  is  assigned  as  error.  The  plaintiffs,  in  this  action,  were  not  en- 
titled to  vindictive  or  exemplary  damages,  but  could  only  recover 
the  damages  they  had  actually  sustained  by  being  deprived  of  the 
gold  or  gold-bearing  earth  taken  by  the  defendants  from  their  min- 
ing ground.  It  follows,  that  the  question  whether  the  defendants 
acted  willfully  and  maliciously,  or  ignorantly  and  innocently,  in 
digging  up  and  taking  away  the  gold-bearing  earth,  is  entirely  im- 
material. The  defendants  took  property  belonging  to  the  plaintiffs, 
and  have  thereby  injured  them  to  a  certain  amount;  and  that 
amount  is  made  no  greater  nor  less  by  the  fact  that  the  act  was 
done  without  any  malicious  intent.  The  right  of  the  plaintiffs  to 
recover  damages,  or  the  amount  of  the  damages  to  which  they  may 
be  entitled,  is  not  affected  by  the  fact  that  the  trespass  was  not  will- 
ful in  its  character." 

With  regard  to  the  common-law  right  of  the  sovereign  to  gold 
and  silver  found  in  any  mine,  see  Attorney-General  v.  Morgan,  [1891] 
1  Ch.  432;  Shoemaker  v.  U.S.,  147  U.S.  282,  306;  Moorev.  Smaio, 
17  Cal.  199,  219.  Cf.  U.S.  Compiled  Statutes,  §  2319. 


FOLEY  V.  WYETH. 

2  All.  (Mass.)  131.     1861. 

Merrick,  J.  The  declaration  alleges  that  the  plaintiff  was  seised 
and  possessed  of  the  parcel  of  land  described  therein,  together  with 
a  right  of  way,  in  common  with  other  persons,  in  two  passageways 
adjoining  and  appurtenant  thereto;  and  that  the  defendant  dug  a 


550  FOLEY    V.    WYETH.  [cHAP.  L 

large  and  deep  pit  in  her  o^mi  land,  whereby  a  considerable  portion 
of  his  land  caved  in  and  was  removed,  and  the  said  passageways 
were  made  useless  and  impassable. 

Proof  of  the  alleged  excavation  and  injury  to  his  land  and  passage- 
ways having  been  adduced  by  the  plaintiff,  the  presiding  judge  ruled 
that  this  was  sufficient  to  entitle  him  to  maintain  his  action,  and 
that  for  this  purpose  it  was  not  incumbent  on  him  to  show  also  that 
the  excavation  was  made  by  the  defendant  in  a  careless,  negligent 
and  unskilful  manner. 

This  ruling  was  correct.  If  the  owner  of  land  makes  an  excavation 
in  it  so  near  to  the  adjoining  land  of  another  proprietor  that  the  soil 
of  the  latter  breaks  away  and  falls  into  the  pit,  he  is  responsible  for 
all  the  damage  thereby  occasioned.  Few  principles  of  the  law  can 
be  traced  to  an  earlier  or  to  a  more  constant  recognition,  through 
a  long  series  of  uniform  and  consistent  decisions,  than  this.  It  is 
distinctly  stated  in  2  Rol.  Ab.  564.  In  Gale  &  Whatley  on  Ease- 
ments, 215,  it  is  said  that  "the  right  to  support  from  the  adjoining 
soil  may  be  claimed  either  in  respect  of  the  land  in  its  natural  state, 
or  land  subjected  to  artificial  pressure  by  means  of  buildings  or  other- 
wise." In  the  former  case  the  right  is  not  an  easement,  but  is  a  right 
of  property  as  being  necessarily  and  naturally  attached  to  the  soil, 
lb.  216.  And  in  the  recent  case  of  Humphries  v.  Brogden,  12  Ad.  & 
El.  N.S.  739,  where  the  law  upon  the  subject  appears  to  have  been 
fully  and  carefully  investigated  and  considered,  it  is  affirmed  that 
the  right  to  lateral  support  from  the  adjoining  soil  is  not  like  the 
support  of  one  building  upon  another,  supposed  to  be  gained  by 
grant,  but  is  a  right  of  property  which  passes  with  the  soil,  so  that  it 
the  owner  of  two  adjoining  closes  conveys  away  one  of  them,  the 
alienee,  without  any  grant  for  that  purpose,  is  entitled  to  the  sup- 
port of  the  other  close  the  very  instant  when  the  conveyance  is 
executed.  "And  this  doctrine,"  said  Lord  Campbell,  C.J.,  after  an 
examination  of  the  authorities  in  which  it  is  recognized,  and  by 
which  it  is  sustained,  "stands  on  natural  justice,  and  is  essential  to 
the  protection  and  enjoyment  of  property  in  the  soil."  The  same 
principle  is  asserted  by  this  court  in  the  opinion  given  by  Parker, 
C.J.  in  the  case  of  Thurston  v.  Hancock,  12  Mass.  220.  The  de- 
cision in  the  case  of  Lasala  v.  Holbrook,  4  Paige,  169,  is  to  the  same 
effect.  Radcliffv.  Maijor,  &c.  of  Brooklyn,  4  Comst.  195;  Richardson 
V.  Vermo7it  Central  Railroad,  25  Vt.  465;  Solomon  v.  The  Vintners' 
Company,  4  Hurlst.  &  Norm.  585.  It  is  a  necessary  consequence 
from  this  principle  that,  for  any  injury  to  his  soil  resulting  from 
the  removal  of  the  natural  support  to  which  it  is  entitled,  by  means 
of  excavation  on  an  adjoining  tract,  the  owner  has  a  legal  remedy 
in  an  action  at  law  against  the  party  by  whom  the  work  has  been 
done  and  the  mischief  thereby  occasioned.  This  does  not  depend 
upon  negligence  or  unskilfuLness,  but  upon  the  violation  of  a  right  of 


CHAP.  I.]  FOLEY    V.    WYETH.  551 

property  which  has  been  mvaded  and  disturbed.  This  unquaUfied 
rule  is  Hmited  to  injuries  caused  to  the  land  itself,  and  does  not 
afford  relief  for  damages  by  the  same  means  to  artificial  structures. 
For  an  injury  to  buildings,  which  is  unavoidably  incident  to  the 
depression  or  slide  of  the  soil  on  which  they  stand,  caused  by  the 
excavation  of  a  pit  on  adjoining  land,  an  action  can  only  be  main- 
tained when  a  want  of  due  care  or  skill,  or  positive  negligence,  has 
contributed  to  produce  it. 

The  jury  were  therefore  correctly  advised  that,  if  the  defendant, 
by  excavations  in  her  owti  land,  and  by  carrying  away  large  quanti- 
ties of  earth  and  clay  therefrom,  caused  the  adjoining  land  to  fall 
and  sink  into  the  pit  which  she  had  dug,  she  was  liable  for  the  injury 
done  to  the  soil  of  the  plaintiff;  and  that  this  action  might  be  main- 
tained to  recover  damages  for  the  interruption  and  disturbance  of 
his  right  of  way  in  the  passageways,  as  well  as  for  depriving  him,  or 
lessening  the  value,  of  the  use  of  the  land  to  which  they  were  appur- 
tenant. But  it  was  erroneous,  in  the  absence  of  any  proof  of  careless- 
ness, negligence  or  unskilfulness  in  the  execution  of  the  work,  to 
add  that  they  might  take  into  consideration  as  an  element  of  damage 
for  w^hich  compensation  could  be  recovered,  the  fact  that  the  foun- 
dation of  his  house  had  been  made  to  crack  and  settle. 

Note.  —  The  doctrine  that  the  defendant  is  liable  for  damage 
done  to  the  land  of  the  plaintiff  in  its  natural  condition,  even  though 
he  excavated  from  a  proper  motive  and  with  due  care,  has  often 
been  approved.  See  Bohrer  v.  Dienhart  Harness  Co.,  19  Ind.  App. 
489,  498;  Gildersleeve  v.  Hammond,  109  Mich.  431,  439;  Schultz  v. 
Bmver,  57  Minn.  493;  Walters  v.  Hamilton,  75  Mo.  App.  237,  246; 
McGuire  v.  Grant,  1  Dutch.  (N.J.)  356;  Sharpless  v.  Boldt, 218  Pa. 
372,  377;  Ulrick  v.  Dakota  Co.,  2  S.D.  285,  291;  Simon  v.  Nance, 
45  Tex.  Civ.  App.  480,  483;  Richardson  v.  Vermont  R.R.  Co.,  25  Vt. 
465,  471. 

In  Brown  v.  Robins,  4  H.  &  N.  186,  the  land  of  the  plaintiff  would 
have  subsided  even  if  it  had  been  left  in  its  natural  condition.  There 
was  no  evidence  that  the  defendant  had  been  negligent.  The  plain- 
tiff was  allowed  to  recover  for  the  damage  to  the  building,  as,  well 
as  for  the  damage  to  the  soil.  This  decision  was  approved  in  Wilms 
V.  Jess,  94  111.  464,  468  (a  case  of  subjacent  support),  and  in  Stearns 
V.  Richmond,  88  Va.  992,  996. 

But  in  Gilmore  v.  Driscoll,  122  Mass.  199,  the  court  refused  to  fol- 
low this  doctrine,  and  held  that  the  defendant  was  absolutely  liable 
only  for  damage  done  to  the  soil  of  the  plaintiff.  Setting  such  limit 
to  the  absolute  liability  of  the  defendant  has  frequently  been  ap- 
proved. See  Quincy  v.  Jones,  76  111.  231,  234;  Moellering  v.  Evans, 
121  Ind.  195;  Winn  v.  Aheles,  35  Kan.  85,  91;  Covington  v.  Geyler, 
93  Ky.  275;  Gildersleeve  v.  Hammond,  109  Mich.  431,  436;  Obert  v. 


552  SCHULTZ    V.    BYERS.  [cHAP.  L 

Dunn,  140  Mo.  476;  McGuire  v.  Grant,  1  Dutch.  (N.J.)  356;  McGet- 
tigan  v.  Potts,  149  Pa.  155;  Bailey  v.  Gray,  53  S.C.  503. 


SCHULTZ  V.  BYERS. 

53  N.J.  L.  442.     1891. 

The  plaintiffs,  Helena  Schultz  and  Valentine  Schultz,  were  the 
owners  of  a  lot  of  land  in  Bayonne,  Hudson  County,  upon  which 
there  was  a  building  erected  on  brick  piers  set  from  three  feet  to 
three  feet  and  a  half  in  the  ground.  The  defendant,  who  owned  the 
adjoining  land,  excavated  to  the  depth  of  seven  feet  within  three  or 
four  inches  of  the  plaintiffs'  building,  and  erected  a  house  thereon. 
The  excavation  by  the  defendant,  within  the  line  of  his  own  land, 
caused  the  building  of  the  plaintiffs  to  sink,  and  it  was  weakened, 
cracked  and  injured. 

There  was  judgment  of  non-suit,  and  exceptions,  on  which  errors 
are  assigned. 

ScuDDER,  J.  The  declaration  is  framed  on  the  idea  that  the  plain- 
tiffs' land,  dwelliQg  house  and  building  were  entitled  to  support  by 
the  adjacent  land  of  the  defendant,  and  that  by  wrongfully  digging 
away  and  removing  such  support  the  damage  complained  of  was 
caused,  whereby  a  right  of  action  accrued.  A  demurrer  was  filed  to 
this  declaration,  but  it  appears  to  have  been  waived,  and  the  cause 
was  tried  on  a  plea  of  the  general  issue,  and  proofs.  With  this  form 
of  pleading,  leaving  the  declaration  unaltered,  there  is  difficulty  in 
holding  the  case  in  court  to  determine  the  exact  cause  of  controversy 
between  these  parties.  But  as  the  court  at  the  circuit  heard  and  de- 
cided the  cause  as  if  the  pleadings  were  amended  to  present  the  issue, 
and  the  question  is  important,  it  will  be  considered  as  it  was  there 
tried  and  decided. 

It  is  almost  unnecessary  to  say  that  the  juxtaposition  of  lands  gives 
no  right  of  support  to  buildings  erected  thereon,  unless  conferred  by 
grant,  conveyance  or  statute.  As  this  is  a  case  of  recent  erection  of 
the  building  alleged  to  have  been  injured,  the  question  of  prescrip- 
tion, or  lapse  of  time  sufficient  to  infer  a  grant  or  conveyance,  does 
not  arise,  nor  has  such  right  ever  been  conceded  in  our  courts.  The 
principle  of  the  lateral  support  of  lands  and  buildings  was  settled 
in  this  state  by  the  case  of  McGuire  v.  Grant,  1  Dutcher,  356  (1856). 
As  to  land  in  its  natural  condition  there  is  a  right  to  such  support 
from  the  adjoining  land;  as  to  buildings  on  or  near  the  boundary 
line,  injured  by  excavating  on  the  adjoining  land,  there  is  no  right 
of  action,  in  the  absence  of  improper  motive,  or  of  carelessness  in 
the  execution  of  the  work.  This  is  the  law  as  established  by  the  cases 
prior  to  that  decision;  it  has  remained  the  unquestioned  law  in  this 


CHAP.  I.]  SCHULTZ    V.    BYERS.  553 

♦ 

state  since  that  time,  and  it  has  been  confirmed  by  manj'  cases  since 
in  other  courts.  Some  of  the  most  recent  are  very  valuable  for  refer- 
ence, notably  Gihnore  v.  DriscoU,  122  Mass.  199;  Angus  v.  Dalton, 
6  Ch.  App.  Cas.  740,  L.  R.  (.3  Q.  B.  Div.)  85,  where  a  most  thorough 
examination  of  the  subject  will  be  found. 

Although  this  law  seems  to  give  the  owner  of  a  building  put  upon 
his  own  land  in  a  manner  most  advantageous  and  sometimes  neces- 
sary to  make  it  available  for  his  use,  especially  in  a  closely  built 
city,  but  little  protection  against  the  choice  or  caprice  of  another 
who  may  o\^^l  the  adjoining  lands,  yet  it  will  be  observed  he  is  not 
entirely  without  protection.  Neither  can  say,  "It  is  lawful  for  me 
to  do  what  I  will  with  my  own,"  as  has  been  sometimes  loosely 
stated  in  discussing  this  subject,  and  that  it  is  a  man's  folly  to  build 
near  the  dividing  line  between  his  land  and  that  of  his  neighbor,  for 
it  is  more  frequently  his  necessity  that  compels  him  to  do  so.  The 
rights  of  the  parties  are  equal,  and  are  subject  to  modification  by 
the  conflicting  right  of  each  other. 

Our  statute  relating  to  party  walls  (Rev.,  p.  809)  shows  that  in 
some  cases  it  has  been  thought  necessary  to  fix  authoritativel}'  the 
mutual  concessions  and  limitations  in  the  rights  of  adjoining  land- 
owners. This  statute  only  applies  where  the  excavation  is  more  than 
eight  feet  in  depth,  while  in  this  case  the  digging  is  but  seven  feet 
deep,  but  it  is  a  recognition  of  the  reciprocal  right  and  duty  v*'hich 
sometimes  gi-ow  out  of  the  mere  \acinage  of  propert}'.  The  maxim 
sic  utere  tuo  ut  alienum  non  laedas  is  often  invoked  in  such  cases,  and 
is  of  very  wide  application.  In  this  case  the  limitation  of  this  prin- 
ciple is,  that  if  the  owner  of  adjoining  land  would  dig  down  beside 
the  foundation  of  his  neighbor's  house,  he  must  exercise  his  right 
to  do  so  not  carelessly,  but  cautiously.  There  was  no  proof,  or  offer 
to  prove,  at  the  trial,  that  the  defendant  was  negligent  in  digging  his 
cellar,  whereby  the  plaintiffs'  house  was  caused  to  settle  and  the 
walls  to  crack,  beyond  the  mere  fact  that  this  was  the  result.  This 
result  alone  was  not  sufficient,  for  it  may  have  been  caused  by  de- 
fects in  the  plaintiffs'  house.  The  special  ground  of  complaint  is, 
that  it  was  done  without  the  knowledge  of  the  plaintiffs,  and  without 
notice  to  them,  by  which  they  might  have  been  enabled  to  protect 
their  property.  It  is  argued  that  the  defendant  thereby  took  upon 
himself  the  whole  risk  of  injury  to  the  building.  The  question  whether 
such  omission  to  give  notice,  under  the  circumstances  stated,  is  evi- 
dence of  carelessness  in  the  execution  of  the  work  is  an  important 
one,  and  it  cannot  be  said  to  be  definitely  settled.  The  case  most 
frequently  cited  in  this  country  in  favor  of  requiring  such  notice  is 
Lasala  v.  Holhrook,  4  Paige,  169,  173  (1833).  In  this  case  Chancellor 
Walworth,  while  affirming  the  right  of  the  owner  of  adjacent  land 
to  excavate  for  improvement  on  his  own  land,  using  ordinary  caie 
and  skill,  without  incurring  damages  for  injury  to  a  building  sup- 


554  SCHULTZ    V.    BYERS.  [CHAP.  L 

ported  thereby,  says:  "From  the  recent  English  decisions  it  appears 
that  the  party  who  is  about  to  endanger  the  building  of  his  neighbor 
by  a  reasonable  improvement  on  his  own  land,  is  bound  to  give  the 
owner  of  the  adjacent  lot  proper  notice  of  the  intended  improvement, 
and  to  use  ordinary  skill  in  conducting  the  same."  He  cites  Peyton 
v.  Mayor  of  London,  9  Barn.  &  C.  725;  s.c.  4  Man.  &  R.  625;  Wal- 
ters V.  Pfeil,  1  Moo.  &  M.  362;  Massey  v.  Goyner,  4  Car.  &  P.  161. 

In  Peyton  v.  Mayor  of  London  it  was  held  that  the  plaintiff  could 
not  recover,  because  the  defendant  had  not  given  notice  of  his  in- 
tention to  pull  down  his  supporting  house,  that  not  being  alleged  in 
the  declaration  as  a  cause  of  the  injury.  Lord  Tenterden  says,  be- 
cause of  the  failure  to  allege  want  of  notice,  the  action  cannot  be 
mamtained  upon  the  want  of  such  notice,  supposing  that,  as  a 
matter  of  law,  the  defendants  were  bound  to  give  notice  before- 
hand, upon  which  pomt  of  law  we  are  not  in  this  case  called  to  give 
any  opinion.  In  Masey  v.  Goyner,  where  notice  was  given  to  the 
occupier  of  adjoining  premises  of  an  intention  to  pull  do^vn  and 
remove  the  foundation  of  a  building,  it  was  held  he  was  only  bound 
to  use  reasonable  and  ordinary  care  in  the  work,  and  not  to  secure 
the  adjoining  premises  from  injury. 

In  Chadwick  v.  Trower,  6  Bing.  N.  C.  1;  s.c.  8  Scott,  1  (1839),  it 
was  decided,  in  the  Exchequer  Chamber,  that  the  mere  circum- 
stance of  juxtaposition  does  not  render  it  necessary  for  a  person  who 
pulls  down  a  wall  to  give  notice  of  his  intention  to  the  owner  of  an  ad- 
joining wall.  This  case  was  first  considered  in  3  Bing.  N.  C.  334,  and 
cited  in  2  Scott  N.  R.  74  and  5  Id.  119.  In  the  argument,  when  it  was 
urged  that  if  it  be  a  duty  imposed  on  a  party  not  to  do  work  so  in- 
cautiously as  to  injure  his  neighbor's  rights,  and  it  is  clearly  a  want 
of  proper  caution  to  omit  giving  such  notice  as  may  enable  the  neigh- 
bor to  take  steps  for  his  own  security,  Parke,  B.,  replied:  "The  duty 
of  giving  notice  in  such  cases  seems  to  be  one  of  those  duties  of 
imperfect  obligation  which  are  not  enforced  by  the  law."  But  if  it 
be  a  duty  affecting  property  rights,  and  the  breach  causes  damage, 
it  would  seem  that  the  law  must  afford  a  remedy. 

In  Brown  v.  Windsor,  1  Cromp.  &  J.  20,  Garrow,  B.,  said:  "There 
may  be  cases  where  a  man  altering  his  own  premises  cannot  support 
his  neighbor's,  and  the  support,  if  necessarj^,  must  be  supplied  else- 
where. In  such  case  he  must  give  notice,  and  then,  if  an  injury  occur, 
it  would  not  be  occasioned  by  the  party  pulling  down,  but  by  the 
other  party  neglecting  to  take  due  precaution." 

There  are  no  later  cases,  that  I  have  found,  in  the  English  courts, 
which  change  the  rule  given  in  Chadwick  v.  Trower,  and  that  is 
therefore  supposed  to  be  the  present  law  in  England  relating  to  this 
subject,  though  the  cases  above  cited  refer  to  support  by  adjoining 
buildings. 

There  are  very  few  cases  in  our  country  which  bear  directly  on 


CHAP.  I.]  SCHULTZ    V.    BYERS.  555 

this  point.  Shafer  v.  Wilson,  4A  Md.  268,  is  most  frequently  referred 
to,  after  Lasala  v.  Holbrook,  above  cited.  It  is  there  said,  tliat  notice 
to  one's  neighbor  of  an  intention  to  make  a  contemplated  improve- 
ment of  property  would  seem  to  be  a  reasonable  precaution  in  a 
populous  city,  where  buildings  are  necessarily^  required  to  be  con- 
tiguous to  each  other,  and  improvements  made  by  one  proprietor, 
however  skillfully  conducted,  may  be  attended  with  disastrous  re- 
sults to  his  neighbors,  who  ought  to  have  the  opportunity  to  protect 
themselves  and  property.  To  the  like  effect  is  Beard  v.  Murphy, 
37  Vt.  101. 

Chancellor  Kent,  3  Com.  437,  has  quoted  the  case  of  Lasala  v. 
Holbrook,  and  this  has  been  referred  to  in  Shafer  v.  Wilson,  and  else- 
where. Washb.  Easem.  434,  435;  Shearm.  &  R.  Negl.  497;  1  Thomp. 
Negl.  276,  and  other  textbooks,  cite  these  cases,  and  from  such  quo- 
tations it  is  impossible  to  determine  how  far  the  requirement  of 
notice  has  passed  into  the  general  law  of  the  courts  in  this  country. 

None  of  these  cases  are  of  binding  authority  in  this  court,  and  in 
a  case  of  doubt,  like  this,  we  should  seek  for  that  result  which  is  most 
reasonable  and  just.  Where  the  danger  of  loss  in  doing  a  legal  act 
is  not  equally  balanced,  we  should  lean  to  that  side  which  most  needs 
protection.  Here  a  mere  notice,  which  can  cause  but  little  trouble 
to  one  who  is  honestly  exercising  his  right  of  excavating  his  land  next 
to  his  neighbor's  house,  may  enable  the  receiver  of  notice  to  shore  or 
prop  his  walls  to  prevent  its  falling,  or  it  may  lead  to  some  arrange- 
ment by  which  neither  will  be  injured.  It  is  more  than  a  mere  neigh- 
borly courtesy  to  give  such  notice,  because  it  involves  the  right  of 
one  man  to  assert  his  right,  regardless  of  the  injury  he  may  cause 
to  his  neighbor  without  such  warning.  The  manner  of  giving  notice 
may  be  only  such  as  is  reasonable  under  the  circumstances,  either 
to  the  owner  of  the  property,  or,  if  there  be  difficulty  in  finding  or 
serving  it  on  him,  then  it  may  be  given  to  the  tenant  or  occupant  who 
is  interested  in  protecting  the  property.  Where  it  can  be  showm  that 
such  owner  had  knowledge  of  the  improvement  that  was  about  to 
be  made,  it  would  not  be  necessary  to  prove  a  formal  notice  given 
to  him. 

In  this  view  of  the  case,  there  was  error  in  rejecting  the  evidence 
which  was  offered  to  show  that  the  defendant  gave  no  notice  to  the 
plaintiffs  of  his  intention  to  excavate  the  land  adjoining  the  house  of 
the  plaintiffs,  and  the  judgment  will  be  reversed. 

Note.  —  Magie,  J.,  delivered  a  dissenting  opinion. 

See,  in  accord  with  the  decision,  Bonaparte  v.  Wiseman,  89  Md.  12. 


556  AUSTIN    V.    HUDSON   RIVER    RAILROAD    COMPANY.      [CHAP.  I. 

AUSTIN  V.  HUDSON  RIVER  RAILROAD  COMPANY. 

25  N.Y.  334.     1862. 

Wright,  J.  The  complaint  alleges  that  the  defendants,  by  their 
officers,  agents  and  servants,  undertook  to  enlarge  and  widen  the  cut 
in  the  Albany  pier  on  the  south  side  thereof,  and  so  carelessly  and 
negligently  performed  the  work  that,  by  and  through  such  careless- 
ness and  negligence,  the  north  wall  of  a  building  or  warehouse  of 
the  plaintiffs  on  such  pier  was  thrown  down,  and  the  building  greatly 
injured  and  damaged,  and  the  plaintiffs  deprived  of  the  use,  occu- 
pation and  income  thereof.  The  fact  of  the  defendants  proceeding 
to  enlarge  and  widen  the  cut  is  not  denied  in  the  answer,  but  they 
set  up  by  way  of  avoidance  that  the  work  was  not  done  under  their 
immediate  care,  but  by  a  contractor,  under  a  special  agreement 
that  it  should  be  done  at  a  proper  time  and  in  a  skillful  manner; 
none  of  which  facts  were  attempted  to  be  proved  on  the  trial.  The 
proof  showed  that  the  work  was  done  by  the  defendants'  engineers 
and  employees,  under  their  direction,  and  not  by  a  contractor  under 
any  special  agreement. 

The  defendants,  having  obtained  the  consent  of  the  pier  company 
to  widen  the  cut  by  excavating  their  owm  lots,  might  lawfully  per- 
form the  work,  and  so  long  as  the  excavation  did  not  extend  beyond 
their  own  land,  and  was  not  neghgently  or  unskillfully  done,  any 
injury  to  an  adjacent  proprietor  would  be  damnum  absque  injuria. 
But  if  the  work  was  negligently,  unskillfully  and  improperly  per- 
formed, and  in  consequence  thereof  the  building  of  the  plaintiffs 
was  injured,  they  would  be  liable.  Dodd  v.  Holmes,  1  Adol.  &  EUis, 
473;  Jones  v.  Bird,  5  Barn.  &  Aid.  837;  Vaughan  v.  Mealon,  32  Eng. 
Com.  Law,  613;  Slingsly  v.  Barnard,  1  Roll.  430;  Bellows  v.  Socket, 
15  Barb.  96.  The  judge  charged  the  jury  that  if  the  work  of  excava- 
tion was  negligently  conducted  by  the  defendants,  then  they  were 
liable  for  the  injury,  thus  carrying  out  the  principle  enunciated, 
and  which  runs  through  the  cases. 

The  question  of  negligence,  or  whether  the  excavation  was  made 
with  ordinary  care  and  skill,  was  submitted  to  the  jury,  the  judge 
not  being  requested  by  the  defendants  to  pass  upon  the  question 
as  matter  of  law  from  the  evidence  adduced  by  the  plaintiffs.  It  is 
true,  that  one  of  the  grounds  urged  for  nonsuiting  the  plaintiffs  was, 
that  there  was  no  proof  to  authorize  a  finding  that  the  work  on  de- 
fendants' premises  was  done  in  a  negligent  or  improper  manner  in 
respect  to  which  an  adjoining  o^Tier  had  any  right  to  com.plain. 
But  this  did  not  meet  the  precise  question  whether  there  had  been  a 
want  of  ordinary  care  in  the  manner  of  performing  the  work,  whereby 
injury  had  resulted  to  the  owner  of  adjoining  premises.  But  I  think 
that  the  judge  would  have  been  justified  in  holding,  as  matter  of  law 


CHAP.  I.]       AUSTIN   V.    HUDSON   RI\^R   RAILROAD    COMPANY.  557 

upon  the  evidence,  that  ordinary  care  was  not  exercised,  and  be 
cause  it  was  not,  injury  resulted  to  the  plaintiffs'  building;  and  if  sc, 
the  defendants  cannot  complain  that  the  question  was  given  to  the 
jury. 

It  is  a  general  principle  that,  if  the  plaintiff's  wrongful  act  or  neg- 
ligence concurs  with  that  of  the  defendant  in  producing  the  injury, 
the  law  will  not  aid  him  in  obtaining  any  redress.  The  principle 
admits  of  exceptions  and  qualifications,  which  it  is  unnecessary  to 
state,  as  I  do  not  think  it  reaches  this  case.  No  negligent  conduct 
of  the  plaintiffs  contributed  to  produce  the  injury.  The  aggressor, 
says  the  learned  judge  in  Bellows  v.  Sachet,  15  Barb.  96,  can  never 
say  that  it  was  the  duty  of  the  assailed  to  ward  off  the  blow  aimed 
at  him.  The  plaintiffs  were  the  lessees  of  the  pier  lot  adjoining  those 
excavated  and  removed  by  the  defendants,  and  had  erected  a  build- 
ing thereon.  Through  the  negligence  and  want  of  care  of  the  defend- 
ants in  excavating  their  lots  and  widening  the  cut,  the  walls  of  their 
building  cracked  and  fell.  The  defendants,  in  the  fall  of  1851,  ex- 
cavated and  removed  the  earth  from  both  of  these  lots,  to  within  four 
feet  of  the  north  line  of  the  plaintiffs'  building,  and  drove  piles  in 
such  a  way  as  to  crack  the  walls.  The  work  was  then  suspended  until 
the  following  spring,  during  which  suspension  the  water  by  its  action 
was  washing  away  the  earth  at  the  north  end  of  the  plaintiffs'  lot, 
and  gradually  undermining  such  lot.  The  attention  of  those  en- 
gaged in  the  excavation  was  called  to  the  action  of  the  water,  but 
nothing  was  done.  There  v/as  no  duty  resting  on  the  plaintiffs  to 
protect  their  building.  But  if  there  had  been,  nothing  could  have 
been  done  short  of  erecting  the  end  wall  on  the  south  side  of  the  cut. 
The  building  could  not  have  been  propped  up  and  saved  from  fall- 
ing, when  the  fall  was  the  result  of  its  being  partially  undermined. 
It  was  not  the  case  of  a  party  who,  having  a  duty  to  perform,  neg- 
lects it,  and  "lies  in  wait"  for  damages. 

I  am  clearly  of  the  opinion  that  the  defendants  were  liable  for  the 
injury.  They  undertook  to  excavate  and  remove  their  lots  on  the 
pier  with  the  view  of  widening  the  cut  on  the  south  side.  Whilst 
they  kept  upon  their  o^ti  premises,  they  were  bound  to  ordinary 
care  and  skill  in  doing  the  work.  If  they  negligently  and  improperly 
prosecuted  and  performed  the  work,  and  through  such  negligence 
and  want  of  caution  the  plaintiffs'  building  was  injured,  they  are 
liable  to  make  compensation.  The  evidence  tended  strongly  to  show, 
and  the  jury  have  found  on  the  question  of  negligence  against  the 
defendants. 

Note.  —  In  Gildersleeve  v.  Hammond,  109  Mich.  431,  435,  the 
defendant  was  held  liable  for  damage  done  to  the  buildings  of  the 
plaintiff  through  an  excavation  made  by  the  defendant  in  a  careless 
manner,  and  the  court  noticed  that,  on  the  facts,  the  plaintiff's  land 


558  CEFFARELLI    IK    LANDING.  [CHAP.  I. 

would  have  fallen  even  if  there  had  been  no  buildings  upon  it.  But, 
it  is  submitted,  the  plaintiff  is  entitled  to  recover  for  damage  to  his 
buildings,  where  the  defendant  has  been  negligent,  even  though  the 
plaintiff's  land  would  not  have  fallen  if  there  had  been  no  buildings. 
See  Moody  v.  McClelland,  39  Ala.  45;  Barnes  v.  Waterbury,  82 
Conn.  518;  Moellering  v.  Evans,  121  Ind.  195;  Louisville  R.R.  Co. 
V.  Bonhayo,  94  Ky.  67;  Larson  v.  Metropolitan  Ry.  Co.,  110  Mo.  234; 
Hammond  v.  Schiff,  100  N.C.  161;  Spohn  v.  Dives,  174  Pa.  474. 


CEFFARELLI  v.  LANDING. 

82  Conn.  126.     1909. 

Action  to  recover  for  work  and  labor  and  materials  furnished  in 
rebuilding  the  defendant's  foundation  wall  and  in  shoring  up  his 
building  adjoining  the  land  upon  which  the  plaintiff,  a  mason  and 
contractor,  was  excavating  preparatory  to  erecting  a  building  for  a 
third  person,  brought  to  and  reserved  by  the  Court  of  Common 
Pleas  in  New  Haven  County,  Wolfe,  J.,  upon  an  agreed  statement 
of  facts,  for  the  advice  of  this  court.  Judgment  advised  for  the  plain- 
tiff. 

Thayer,  J.  The  statement  of  facts  shows  that  the  defendant 
owns  land  on  Hill  Street  in  the  city  of  New  Haven,  upon  which  there 
now  is,  and  for  many  years  prior  to  April,  1906,  had  been,  a  frame 
house,  the  southerly  side  of  which,  and  of  its  underpinning  wall,  is 
twenty-two  inches  northerly  of  the  southerly  line  of  his  land.  The 
twenty-two-inch  strip  between  the  house  and  the  southerly  line  of 
his  lot  was  covered  by  an  ordinary  concrete  walk.  The  lot  of  land 
on  Hill  Street  south  of  the  defendant's  lot  was  owned  by  one  An- 
tonio Pepe.  In  April,  1906,  the  plaintiff,  who  is  a  contractor  and 
builder,  entered  into  a  contract  with  Pepe  to  excavate  for,  and  erect, 
a  brick  building  upon  his  land,  such  excavation  and  building  to  ex- 
tend to  the  southerly  line  of  the  defendant's  land.  The  excavation 
was  not  intended  to  be  carried  more  than  ten  feet  below  the  curb  line 
of  Hill  Street,  and  in  fact  was  not  carried  to  a  greater  depth  than 
that.  The  defendant's  building  increased  the  lateral  pressure  upon 
said  Pepe's  land,  and  required  lateral  support  from  his  land  at  least 
four  feet  below  the  surface  thereof.  Before  the  excavation  was  com- 
menced, both  the  plaintiff  and  Pepe  gave  the  defendant  written 
notice  that  it  was  contemplated,  and  that  he  should  shore  up  and 
protect  his  building.  Heneglected  todo  this.  The  plaintiff  proceeded 
with  the  excavation,  and  as  the  support  afforded  by  the  Pepe  land 
was  removed,  the  twenty-two  inches  of  the  defendant's  land  which 
was  covered  with  the  concrete  first  crumbled  away,  and  as  the  exca- 
vation progressed  the  wall  of  his  building  gave  way  and  fell,  and  the 


CHAP.  I.]  CEFFARELLI    V.    LANDING.  559 

entire  building  was  in  danger  of  falling,  and  threatened  serious  dan- 
ger to  the  plaintiff  and  his  workmen.  To  protect  the  defendant's 
building  and  save  it  from  destruction,  and  to  render  the  work  of 
excavating  safe  for  the  plaintiff  and  his  men,  he  performed  work  and 
furnished  brick,  stone,  planking,  and  other  materials  in  building  in 
part  a  new  foundation  under  the  building  to  support  and  protect  it. 
Before  this  was  done  the  building  inspector  of  the  city  of  New  Haven 
had,  in  writing,  ordered  the  defendant  to  protect  said  southerly  wall 
of  his  building,  and  he  having  failed  for  more  than  twenty-four  hours 
to  comply  with  the  order,  the  inspector  had  by  written  order  directed 
the  plaintiff  to  support  and  protect  the  building  from  falling. 

In  addition  to  these  facts  contained  in  the  agreed  statement,  the 
court  has  found  that  during  the  work  done  by  the  plaintiff  to  sup- 
port and  protect  the  defendant's  building  the  latter  observed  the 
work  and  directed  the  plaintiff  to  put  a  cellar  window  in  a  portion 
of  the  foundation  wall  rebuilt  by  him,  and  that  the  plaintiff"  did  as  thus 
directed,  and  that  the  value  of  the  materials  and  services  furnished  by 
the  plaintiff  was  $290. 

The  complaint  contains  three  counts.  The  first  is  founded  upon 
the  claimed  right  to  recover  at  common  law  upon  the  foregoing  facts. 
The  second  is  based  upon  the  claimed  right  to  recover  by  force  of 
the  city  ordinances  hereinafter  referred  to.  The.  third  is  the  common 
counts,  with  a  bill  of  particulars  for  work  and  materials.  A  demur- 
rer to  the  first  two  counts  was  filed  and  pro  forma  overruled.  An 
answer  to  each  count  was  then  filed  and  the  case,  at  the  request  of 
the  parties,  has  been  reserved  for  the  advice  of  this  court  as  to  what 
judgment  shall  be  rendered. 

It  is  unnecessary  to  consider  the  correctness  of  the  rulings  upon 
the  demurrer.  The  facts  as  agreed  upon  are  substantially  those 
which  are  alleged  in  the  complaint,  and  present  the  same  questions 
which  were  raised  by  the  demurrer.  If,  upon  those  facts,  the  plain- 
tiff is  entitled  to  recover  upon  either  count,  the  defendant  caimot 
now  complain  of  rulings  made  upon  his  demurrer. 

At  common  law  the  owner  of  land  is  entitled  to  have  his  soil  in  its 
natural  condition  supported  by  the  adjoining  land,  but  this  right  to 
lateral  support  does  not  extend  to  buildings  or  other  superstructures 
placed  upon  the  land.  Trowbridge  v.  True,  52  Conn.  190;  Gilmore 
V.  Driscoll,  122  Mass.  199.  The  adjoining  owner,  therefore,  if  he 
excavates  so  near  the  line  that  his  neighbor's  soil,  bj''  reason  of  its 
own  weight  or  the  action  of  the  elements,  is  liable  to  give  way,  must 
support  it  by  artificial  means,  or  answer  in  damages  if  it  falls  into 
the  excavation.  But  if  there  are  buildings  upon  the  neighbor's  land, 
these  increase  the  lateral  pressure,  and  if  the  giving  way  is  due  to 
this  added  burden,  the  person  excavating  is  not  liable,  in  the  absence 
of  negligence  in  conducting  the  work,  for  the  damage  so  resulting 
to  the  owner.   The  hardship  of  this  rule,  especially  in  cities,  is  ap- 


560  CEFFARELLI    V.    LANDING.  [CHAP.  I. 

parent,  and  an  attempt  has  been  made  in  some  of  the  States  to  es- 
tablish a  rule  more  favorable  to  an  owner  upon  whose  land  buildings 
have  been  erected.  In  this  State  there  is  no  such  statute.  At  com- 
mon law,  therefore,  it  was  not  the  plaintiff's  duty  to  support  or  pro- 
tect the  defendant's  building,  and  the  latter,  had  he  built  the  foun- 
dation and  furnished  the  support  which  the  plaintiff  provided,  could 
not  have  recovered  for  it  in  an  action  against  him. 

But  he  claims  that  he  had  acquired  by  prescription  the  right  in 
the  Pepe  land  to  lateral  support  for  the  building,  and  that  conse- 
quently the  duty  to  protect  it  from  the  results  of  the  excavation  fell 
upon  the  plaintiff.  Whether  such  right  to  lateral  support  for  struc- 
tures erected  upon  the  soil  of  one  lot  can  be  acquired  by  prescription 
in  the  soil  of  an  adjoining  lot,  is  a  question  upon  which  the  authori- 
ties differ.  It  is  unnecessary  to  consider  the  question  in  the  present 
case,  because,  if  the  right  could  be  so  acquired,  the  record  does  not 
show  that  the  defendant's  building  had  existed  for  such  a  length  of 
time,  or  under  such  circumstances,  as  to  justify  the  defendant's 
claim.  It  was  not  for  the  plaintiff  to  allege  or  prove  that  such  a  right 
had  not  been  acquired  by  prescription,  but  for  the  defendant,  if  he 
;laimed  it,  to  establish  that  it  had  been. 

The  ordinances  of  the  city  of  New  Haven  provide  that  whenever 
an  excavation  for  building  or  other  purposes  shall  be  intended  to 
be,  or  shall  be,  carried  to  a  depth  of  more  than  ten  feet  below  the 
street  curb,  the  person  causing  the  excavation  shall,  if  afforded  the 
necessary  license  to  enter  the  adjoining  land,  at  his  own  expense 
preserve  any  adjoining  or  contiguous  wall  from  injury,  but  that 
v/hen  such  excavation  shall  not  be  intended  to  be  and  shall  not  be 
carried  to  a  depth  of  more  than  ten  feet,  the  owner  of  such  walls 
shall  preserve  the  same  from  injury,  and  so  support  the  same  that 
they  shall  remain  practically  as  safe  as  before  the  excavation  was 
commenced.  The  ordinances  also  provide  that  if  the  person  whose 
duty  it  shall  be  to  protect  such  walls  shall  neglect  or  fail  to  do  so 
after  having  had  twenty-four  hours'  notice  from  the  building  inspec- 
tor, the  inspector  may  cause  the  work  to  be  done  at  the  expense  of 
the  party  whose  duty  it  was  to  do  it.  It  appears  that  the  inspector 
notified  the  defendant  to  protect  the  walls  of  his  building,  that  the 
latter  neglected  and  failed  to  do  this  for  more  than  twenty-four  hours, 
and  that  the  inspector  then  directed  the  plaintiff  to  do  it.  The  de- 
fendant contends  that  the  plaintiff  cannot  recover  except  by  force 
of  these  ordinances,  and  that  these  are  invalid  because  unauthorized 
by  the  city  charter  and  in  \'iolation  of  the  constitution  of  the  State. 

We  do  not  find  it  necessary  to  consider  the  defendant's  claims  as 
to  the  invalidity  of  the  city  ordinances,  because  we  think  that  the 
plaintiff  is  entitled  to  recover  upon  the  common  counts  for  the  work 
and  materials  named  in  the  bill  of  particulars.  The  defendant  not 
only  Imew  that  the  plaintiff  was  furnishing  these  —  which  it  was  the 


SECT.  I.]  SmTH    V.    THACKERAH.  561 

duty  of  the  defendant  to  furnish  —  expecting  to  be  paid  therefor, 
but  he  also  directed  about  the  work.  While  it  is  not  specifically 
found  that  all  the  work  and  materials  were  furnished  upon  request, 
such  is  the  fair  inference  from  the  finding.  The  law  implies  there- 
from a  promise  to  pay  for  the  same.  The  plaintiff  is  therefore  en- 
titled to  recover  upon  the  third  count  of  the  complaint. 

Whether  the  plaintiff  is  liable  to  the  defendant  for  causing  the 
twenty-two  inches  of  soil  intervening  between  the  excavation  and 
his  building  to  cave  in  we  need  not  inquire.  That  question,  and  the 
question  whether  the  excavation  should  have  been  sheet-piled,  as 
claimed  by  the  defendant,  are  not  involved  in  the  present  proceed- 
ing. The  record  shows  that  the  defendant's  foundation  gave  way 
because  of  the  increased  burden  imposed  upon  the  Pepe  land  by  the 
defendant's  building,  and  the  fact  that  there  was  a  narrow  strip  of 
soil  not  covered  by  the  building,  adjoining  the  excavation,  would  not 
cast  upon  the  plaintiff  the  duty  of  protecting  the  building. 

The  Court  of  Common  Pleas  is  ad\'ised  to  render  judgment  for  the 
plaintiff  for  S290  with  interest  from  January  1st,  1908,  to  the  date 
of  judgment. 

Costs  in  this  court  will  be  taxed  in  favor  of  the  plaintiff. 

In  this  opinion  the  other  judges  concurred. 


SMITH  V.  THACKERAH. 

L.  R.  1  C.  P.  564.     1866. 

Declaration  that  the  plaintiff  was  possessed  of  certain  land, 
and  the  land  received  lateral  support  from  certain  land  adjoining 
thereto;  and  defendants  dug  and  m.ade  on  this  adjoining  land  an 
excavation  or  well  near  to  the  land  of  the  plaintiff,  and  the  defend- 
ants thereby,  and  for  want  of  keeping  and  continuing  the  sides  of 
the  well  shored  up,  or  otherwise  preventing  the  consequences  here- 
inafter mentioned,  wrongfully  deprived  the  land  of  the  plaintiff  of 
its  support,  whereby  the  land  of  the  plaintiff  sank  and  gave  way,  and 
divers  walls,  buildings,  and  premises  of  the  plaintiff  on  the  land  sank 
and  were  damaged,  whereby  the  plaintiff  was  put  to  great  expense, 
etc. 

Pleas,  not  guilty,  and  not  possessed. 

At  the  trial  before  Erle,  C.J.,  at  the  last  Surrey  spring  assizes, 
it  was  proved  that  the  plaintiff  was  possessed  of  a  piece  of  land  on 
which  a  building  had  been  recentlj'  erected,  and  that  the  defend- 
ants, who  were  ncighl)ouring  landowners,  dug  a  well  on  their  own 
land  near  to  that  of  the  plaintiff,  and  afterwards  filled  up  the  well 
with  such  loose  earth  that  the  ground  round  it  sank,  and  the  plain- 
tiff's building  was  injured,  causing  damage  to  the  amomit  of  151. 


562  SMITH    V.    THACKERAH.  [CHAP.  I. 

The  jury  found,  in  answer  to  questions  by  the  Chief  Justice,  that 
the  land  of  the  plaintiff  would  have  sunk  if  there  had  been  no  build- 
ing on  it,  and  that  some  particles  of  sand  from  it  would  have  fallen 
on  to  the  defendants'  property,  but  that  the  plaintiff  would  have 
suffered  no  appreciable  damage. 

A  verdict  was  entered  for  the  defendants,  with  leave  to  the  plain- 
tiff to  move  to  enter  the  verdict  for  such  sum  under  151.  as  the  court 
should  direct,  on  the  ground  that  the  facts  proved  at  the  trial  entitled 
the  plaintiff  to  a  verdict  without  proof  of  any  pecuniary  damage. 

Erle,  C.J.  I  am  of  opinion  that  this  rule  should  be  discharged. 
There  is  no  doubt  that  a  right  of  action  accrues  whenever  a  person 
interferes  with  his  neighbour's  rights,  as,  for  example,  by  stepping 
on  his  land,  or,  as  in  the  case  of  Ashby  v.  White,  1  Sm.  L.  C.  5th  ed. 
216,  interfering  with  his  right  to  vote,  and  this  though  no  actual 
damage  may  result.  But  for  a  man  to  dig  a  hole  in  his  own  land  is 
in  itself  a  perfectly  lawful  act  of  ownership,  and  it  only  becomes  a 
wrong  if  it  injures  his  neighbour;  and  since  it  is  the  injury  itseff  which 
gives  rise  to  the  right  of  action,  there  can  be  no  right  of  action  unless 
the  damage  is  of  an  appreciable  amount.  A  person  may  build  a  chim- 
ney in  front  of  your  drawing-room,  and  the  smoke  from  it  may 
annoy  you,  or  he  may  carry  on  a  trade  next  door  to  your  house  the 
noise  of  which  may  be  inconvenient;  but  unless  the  smoke  or  noise 
be  such  as  to  do  you  appreciable  damage,  you  have  no  right  of  action 
against  him  for  what  is  in  itself  a  lawful  act.  In  the  case  of  St.  Helen's 
Smelting  Company  v.  Tipping,  11  H.  L.  C.  642;  35  L.  J.  (Q.B.)  66, 
in  which  the  defendant  had  set  up  some  chemical  works,  the  House 
of  Lords  held  that,  if  the  noxious  vapours  did  not  cause  material 
damage  to  the  plaintiff,  he  had  no  cause  of  action.  In  the  present 
case  the  digging  the  well  and  filling  it  up  again  were  in  themselves 
perfectly  lawful  acts,  and  the  jury  have  found  that  they  did  no  sen- 
sible damage  to  the  plaintiff,  and  he  has  therefore  no  right  of  action. 

Byles,  J.  I  am  of  the  same  opinion.  In  actions  for  a  trespass  the 
trespass  itself  is  a  sufficient  cause  of  action.  But  in  actions  for  in- 
direct injuries  like  the  present,  the  judgment  of  the  House  of  Lords 
in  Bonomi  v.  Backhouse,  9  H.  L.  C.  503;  34  L.  J.  (Q.B.)  181,  shews 
that  there  is  no  cause  of  action  if  there  be  no  damage,  and  I  cannot 
distinguish  between  no  appreciable  damage  to  the  land  in  its  natural 
state  and  no  damage  at  all. 

Montague  Smith,  J.  I  am  of  the  same  opinion.  The  mere  sub- 
sidence of  the  surface  of  the  soil  is  not  necessarily  an  injury,  and  we 
are  bound  by  the  verdict  of  the  jury,  who  found  that  in  fact  no  appre- 
ciable damage  would  have  occurred  if  these  new  buildings  had  not 
been  on  the  land.  Rule  discharged. 

Note.  —  The  Statute  of  Limitations  begins  to  run,  in  favor  of  the 
defendant,  from  the  time  when  damage  is  suffered  by  the  plaintiff, 


CHAP.  I.]  BIRMINGHAM    V.    ALLEN.  563 

not  from  the  time  when  the  excavation  is  made  by  the  defendant. 
Backhouse  v.  Bonomi,  9  H.  L.  C.  503. 


BIRMINGHAM  v.  ALLEN. 

L.  R.  6  Ch.  D.  284.     1877. 

This  was  an  action  by  the  Corporation  of  Birmingham,  who  were 
the  owners  of  gasworks  called  the  Swan  Village  Gasworks,  to  restrain 
the  defendants,  T.  H.  Allen  and  T.  E.  Holden,  who  were  proprietors 
of  Swan  Farm  Colliery,  in  the  neighbourhood  of  the  gasworks,  from 
working  their  coal  in  such  a  manner  as  to  cause  subsidence  of  the 
surface  of  the  plaintiffs'  land. 

The  plaintiffs  purchased  the  gasworks  from  the  Birmingham  and 
Staffordshire  Gaslight  Company  in  the  j^ear  1875. 

The  gas  company  purchased  the  land  on  which  the  works  were 
erected,  together  with  the  minerals  under  the  same,  in  the  year 
1824.  They  afterwards  purchased  the  minerals  under  various  pieces 
of  land  adjoining  their  property,  for  the  purpose  of  preventing  the 
surface  of  their  o-wn  land  from  being  shaken  or  disturbed.  Among 
others  they  purchased,  in  1872,  the  minerals  under  a  piece  of  land 
belonging  to  Messrs.  Pershore  &  Gregory  which  adjoined  the  west- 
em  boundary  of  the  gasworks.  The  defendants'  colhery  lay  to  the 
west  of  this  piece  of  land,  to  which  it  adjoined,  so  that  the  piece  of 
land  lay  between  the  properties  of  the  plaintiffs  and  the  defendants. 

The  seams  of  coal  under  the  district  were  as  follows:  — 

The  Brooch  Coal,  3  ft.  9  in.  thick,  about  90  yards  from  the  surface. 

The  Thick  Coal,  28  ft.  9  in.  thick,  about  156  yards  from  the  sur- 
face. 

The  Heathen  Coal,  3  ft.  6  in.  thick,  about  156  yards  from  the  sur- 
face. 

The  New  Mine  Coal,  5  ft.  6  in.  thick,  about  185  yards  from  the 
surface. 

The  Thick  Coal  under  the  piece  of  land  purchased  by  the  gas 
company  in  1872  had  been  worked  out  more  than  thirty  years  before 
they  purchased  it,  and  the  superincumbent  earth  was  propped  by 
pillars  in  the  usual  way. 

The  Thick  Coal  under  the  gasworks  had  not  been  worked  out  when 
the  company  purchased  the  site  in  1824;  but  in  the  year  1834  they 
granted  the  Thick  Coal  under  a  small  portion  of  the  surface  to  Messrs. 
Bagriall  &  Hajoies,  who  worked  it  out.  Some  of  the  area  thus  granted 
was  exactly  under  the  retorts  of  the  gas  company. 

The  defendants  were  now  engaged  in  working  the  lowest  vein,  or 
N'ew  Mine  Coal,  under  their  land.  They  worked  from  west  to  east, 
and  in  doing  so  approached  within  a  few  yards  of  the  western  bound- 
ary of  land  purchased  by  the  gas  company  in  1872. 


564  BIRMINGHAM    V.    ALLEN.  [CHAP.  I. 

The  plaintiffs  claimed  that  the  working  of  the  New  Mine  Coal 
by  the  defendants  had  already  caused  a  subsidence  of  the  surface  of 
their  land  and  the  buildings  thereon  erected,  and  would,  if  persisted 
in,  cause  them  great  injury,  and  they  brought  this  action  for  an  in- 
junction accordingly. 

The  defendants  pleaded  that  if  any  subsidence  of  the  plaintiffs' 
land  had  taken  place,  it  had  been  caused  partly  by  the  excavations 
of  Thick  Coal  under  the  plaintiffs'  own  land  by  the  lessees  of  the  gas 
company,  and  partly  by  the  erection  of  buildings  within  the  last 
twenty  years  over  such  excavated  portions;  and  they  denied  that 
they  were  under  any  liability  to  the  plaintiffs  in  respect  of  any  in- 
jury they  had  sustained. 

Both  sides  went  into  evidence  at  gi-eat  length.  The  trial  came  on 
before  the  Master  of  the  Rolls  on  the  15th  of  March,  1877,  and  wit- 
nesses were  examined  on  both  sides.  The  result  of  the  evidence  is 
stated  in  the  judgment  of  the  Master  of  the  Rolls. 

Jessel,  M.R.  I  am  of  opinion  that  the  plaintiffs'  case  entirely 
fails.  We  have  had  a  most  careful  and,  I  think,  a  most  exhaustive 
investigation  into  the  facts,  and,  as  far  as  I  am  concerned,  I  have 
no  doubt  upon  any  of  the  facts  necessary  to  be  decided. 

I  think  it  is  plain  that  if  the  land  adjoining  the  plaintiffs'  land 
had  not  been  undermined,  the  defendants  might  work  the  New  Mine 
seam  as  well  as  the  Thick  Coal  seam  up  to  their  boundary.  [His 
Lordship  then  referred  to  the  e\'idence  on  this  point.] 

Now,  looking  to  this  evidence,  and  considering  that  it  is  for  the 
plaintiffs  to  prove  their  case,  I  am  of  opinion  that  it  is  proved  satis- 
factorily that,  supposing  the  land  between  the  plaintiffs'  and  the 
defendants'  land  had  remained  in  its  natui"al  state,  if  the  defend- 
ants' workings  should  be  prosecuted  up  to  the  boundary  of  their 
property,  they  would  not,  as  far  as  the  New  Mine  is  concerned, 
cause  any  injury  whatever  to  the  plaintiffs'  works. 

Then  there  is  a  second  question,  which  is  a  question  of  fact  I  think 
I  ought  to  give  my  opinion  upon.  Has  the  working  of  the  defendants' 
New  Mine  at  all  actually  injured  the  plaintiffs'  buildings?  I  am  clear 
it  has  not.  [His  Lordship  then  considered  the  e\'idence  on  this  part 
of  the  case,  and  considered  that  there  was  no  evidence  of  injury  al- 
ready received.] 

Then  comes  the  question.  Will  it  occasion  injury?  As  to  that, 
the  evidence  is  veiy  conflicting.  Mr.  Cooksey  puts  the  safe  distance 
at  100  yards,  and  although  there  is  a  little  variation,  the  plaintiffs' 
experts  substantially  agree  in  putting  the  safe  distance  at  100  yards, 
or  fifty-five  yards  from  the  defendants'  boundary.  The  defendants' 
four  experts  also  substantially  agree,  and  they  put  it  at  sixty  yards, 
or  fifteen  yards  from  the  defendants'  boundary. 

Here,  again,  it  is  for  the  plaintiffs  to  make  out  their  case,  and  it 
seems  to  me  to  be  mere  surmise  on  both  sides.  However,  I  must  say, 


CHAP.   I.]  BIEMINGHAM    V.    ALLEN.  565 

if  it  were  necessary  to  decide  the  case  on  that  ground,  that  it  is  not 
proved  to  my  satisfaction  that  more  than  sixty  yards  is  required, 
that  is,  more  than  fifteen  yards  from  the  boundary. 

[His  Lordship,  after  considering  certain  subordinate  questions  of 
fact,  continued:] 

I  now  come  to  a  point  of  very  great  difficulty  indeed,  on  which 
the  evidence  is  in  a  very  singular  condition.  The  plaintiffs  them- 
selves, or  their  predecessors  in  title,  had  allowed  a  portion  of  their 
land  to  be  undermined,  that  is,  had  allowed  coal  to  be  extracted  from 
under  that  land,  and  the  question  was,  whether  the  extraction  of  that 
coal  in  any  way  interfered  with  the  support  of  the  retort  houses. 
Now  the  odd  part  of  the  matter  is,  that  the  experts  for  the  plaintiffs 
said  that  it  would  interfere  with  the  support,  and  increase  subsid- 
ence; and  the  experts  of  the  defendants  said  it  would  not.  Under 
these  circumstances,  I  think  it  is  only  fair  to  say  that,  as  against 
the  plaintiffs,  they  cannot  reject  the  evidence  of  their  o'rti  experts, 
and  therefore  I  must  consider  that  it  does  affect  it  to  some  extent, 
but,  considering  the  evidence  of  the  defendants'  experts,  not  to  a 
material  extent.  That  is  the  way  that  matter  appears  to  me. 

Now,  haling  so  far  dealt  with  the  facts,  let  me  consider  the  law. 
As  I  understand,  the  law  was  settled  by  the  House  of  Lords,  con- 
firming the  decision  of  the  Court  of  Exchequer  Chamber  in  the  case 
of  Backhouse  v.  Bonomi,  9  H.  L.  C.  503,  that  every  landowner  in  the 
kingdom  has  a  right  to  the  support  of  his  land  in  its  natural  state. 
It  is  not  an  easement:  it  is  a  right  of  property.  That  being  so,  if  the 
plaintiffs'  land  had  been  in  its  natural  state,  no  doubt  the  defendants 
must  not  do  anything  to  let  that  land  slip,  or  go  down,  or  subside. 
If  they  were  doing  an  act  which  it  could  be  proved  to  me  by  satisfac- 
torj''  expert  eiadence  would  necessarily  have  that  effect,  I  have  no 
doubt  this  court  would  interfere  by  injunction  on  the  ground  upon 
which  it  always  interferes,  namely,  to  prevent  irreparable  damage 
when  the  damage  is  only  threatened.  Of  course  they  must  have  a 
much  clearer  and  much  stronger  case  to  call  for  the  interference  of 
this  court  by  injunction  where  the  damage  is  merely  threatened  and 
no  damage  has  actually  occurred,  than  when  some  damage  has  ac- 
tually' occurred,  because  in  the  one  case  you  have  no  facts  to  go  by, 
but  only  opinion,  and  in  the  other  case  you  have  actual  facts  to  go 
by.  If  some  damage  has  occurred  it  makes  it  manifest  and  certain 
that  further  damage  will  occur  by  reason  of  the  prosecution  of  the 
works. 

Now  in  this  case,  if  it  stands  at  all,  it  may  well  stand  merely  on 
opinion  evidence,  which  would  be  sufficient  ground  for  interference 
if  all  the  experts  agreed  and  the  court  were  satisfied  that  damage 
had  occurred;  and  I  think  when  I  compare  the  evidence  of  these 
various  experts,  I  must  take  it  for  this  purpose  as  proved  that  if 
the  defendants  work  within  fifteen  yards  of  their  boundary,  and  in 


566  BIEMINGHAM    V.    ALLEN.  [CHAP.  I. 

their  New  Mine  Coal,  damage,  and  serious  damage,  will  accrue  to 
plaintiffs'  buildings.  But  the  question  I  have  to  decide  is  whether 
in  law  that  entitles  them  to  an  injunction.  I  think  it  does  not. 
In  this  case  it  is  true  the  plaintiffs  or  their  predecessors  acquired  the 
mineral  area,  and  acquired  some  of  the  land  after  the  Thick  Coal 
had  been  worked  out  and  not  before;  but  for  the  present  purpose 
I  lay  out  of  consideration  the  fact  of  their  ownership  of  anj'thing, 
and  I  will  treat  the  case  as  if  the  portions  under  which  they  possess 
the  minerals,  and  the  land  so  subsequently  acquired,  did  not  belong 
to  them,  and  it  appears  as  the  result  of  the  evidence  that  if  that 
Thick  Coal  had  not  been  extracted  from  under  these  portions  of 
land,  the  intended  operations  of  the  defendants  w^ould  certainly  not 
cause  any  substantial  injury. 

But  it  is  said  that,  inasmuch  as  these  operations  have  occurred 
in  what  I  will  call  the  intervening  land,  and  have  thereby  weakened 
the  support,  it  will  entitle  the  plaintiffs  to  prevent  the  o^Tiers  of 
the  land  on  the  other  side  of  this  intervening  land  from  working  their 
mines  in  the  way  thej^  could  otherwise  have  worked  them.  But  the 
first  question  one  asks  is.  Why?  Why  should  the  act  of  the  inter- 
vening owner,  that  is,  the  owner  of  the  intermediate  land,  deprive 
men  of  their  rights  to  their  mines?  It  strikes  one  at?  once  as  a  most 
extraordinary  proposition.  The  act  of  the  intervening  o^vner  for 
this  purpose  is  rightful  as  regards  the  mine-owmers  whose  mines  are 
asked  to  be  confiscated,  for  that  is  what  it  comes  to.  If  they  cannot 
work  them  they  are  confiscated.  The  plaintiffs  ask  for  the  confis- 
cation of  their  property,  not  because  they  have  done  anj'  wrong, 
for  they  have  done  no  wrong  —  not  because  the  intervening  owner 
has  done  any  wrong,  for  he  only  worked  his  mines,  and  when  he 
worked  them  he  occasioned  no  injury  to  the  person  who  o\NTied  the 
property  on  the  other  side;  but  it  is  said  that  inasmuch  as  he  has 
taken  out  his  coal  first,  the  defendants  are  deprived  of  the  right  of 
getting  their  mines.  I  say  it  is  a  startling  proposition,  and  one 
which  appears  to  me  so  unfounded  in  reason  that  I  should  be  xery 
loth  indeed  to  believe  it  was  founded  in  law. 

Now,  what  is  the  right  of  the  adjoining  o\\Tier?  As  I  said  before,  it 
is  to  the  support  of  his  land  in  its  natuB'al  state  —  support  by  whom? 
The  judges  have  said,  "Support  by  his  neighbour."  What  does 
that  mean?  Who  is  his  neighbour?  It  was  contended  that  all  the 
landowners  in  England,  however  distant,  were  neighbours  for  this 
purpose  if  their  operations  in  any  remote  degree  injured  the  land. 
But  surely  that  cannot  be  the  meaning  of  it.  The  neighbouring  land- 
owner to  me  for  this  purpose  must  be  the  owner  of  that  portion  of 
land,  whetlier  a  wider  or  narrower  strip  of  land,  the  existence  of  which 
in  its  natural  state  is  necessary  for  the  support  of  my  land.  As  long 
as  that  land  remains  in  its  natural  state,  and  it  supports  my  land, 
I  have  no  rights  beyond  it,  and  therefore  it  seems  to  me  that  he  is 


CHAP.  I.]  HENNESSY    V.    CARMODT.  567 

my  neighbour  for  this  purpose.  There  might  be  land  of  so  solid  a 
character,  consisting  of  solid  stone,  that  a  foot  of  it  would  be  enough 
to  support  the  land.  There  might  be  other  land  so  friable  and  of 
such  an  unsolid  character  that  you  would  want  a  quarter  of  a  mile 
of  it.  But  whatever  it  is,  as  long  as  you  have  got  enough  land  on 
your  boundary,  which  left  untouched  will  support  your  land,  you 
have  got  your  neighbour's  land  whose  support  you  are  entitled  to. 
Beyond  that  it  would  appear  to  me  you  have  no  rights. 

Well,  that  being  so,  it  is  clear  upon  the  evidence  that  the  inter- 
vening portions  of  land  between  the  boundary  of  the  plaintiffs'  and 
the  boundary  of  the  defendants'  land  was  sufficient  in  its  natural 
state  for  the  support  of  the  plaintiffs'  building.  Therefore  it  appears 
to  me  that  the  plaintiffs  have  no  rights  as  against  the  lando\\Tiers 
on  the  other  side  of  that  intervening  space,  and  that  they  acquire 
no  rights  whatever  the  owner  of  the  intervening  land  may  have  done ; 
and,  if  the  act  of  the  intervening  owner  has  been  such  as  to  take  away 
the  support  to  which  the  first  landowner  who  complains  is  entitled, 
then,  for  whatever  damage  occurs  from  the  act  which  he  has  done, 
the  first  owner  may  have  an  action,  but  an  action  against  the  inter- 
vening owner,  not  an  action  against  the  owner  on  the  other  side; 
and  it  appears  to  me  that  it  would  be  really  a  most  extraordinary 
result  that  the  man  upon  whom  no  responsibility  whatever  originally 
rested,  who  was  under  no  liability  whatever  to  support  the  plain- 
tiffs' land,  should  have  that  liability  thrown  upon  him  without  any 
default  of  his  own,  without  any  misconduct  or  any  misfeasance  on 
his  part.  I  cannot  befieve  that  any  such  law  exists  or  ever  will  exist. 
It  appears  to  me,  therefore,  that  the  plaintiffs  are  not  entitled  to 
damages  for  the  acts  of  the  defendants,  and  that  the  only  order  I 
ought  to  make  is  to  dismiss  the  action  with  costs. 


HENNESSY  v.   CARMODY. 

50  N.J.  Eq.  616.     1892. 

Pitney,  V.C.  The  object  of  the  bill  is  to  restrain  a  private  nui- 
sance. 

The  complainant  is  the  owner  of  a  small  lot  of  land,  about  eight- 
een feet  front  and  rear  by  about  ninety-six  feet  deep,  in  the  city 
of  Camden,  fronting  on  the  west  side  of  South  Eighth  Street,  about 
midway  between  Spruce  Street  on  the  north  and  Cherry  Street  on 
the  south.  Upon  this  lot  is  situate  a  small  dwelling-house,  composed 
of  a  main  or  front  part  of  brick  about  fifteen  feet  front  by  thirty  feet 
deep,  two  stories  high,  leaving  a  passageway  of  three  feet  on  the 
northerly  side,  and  having  a  wooden  extension  or  kitchen,  about  ten 
by  thirty  five  feet,  two  stories  high,  in  the  rear.   The  rear  of  this 


568  HENNESSY    V.    CARMODY.  CHAP.  1  ] 

structure  is  thirty-one  and  a  half  feet  from  the  rear  line  of  the  lot. 
The  ground  lying  to  the  north  and  west  of  this  lot  is  owned  by  the 
defendants,  or  one  of  them,  and  is  used  for  a  dye-works  for  coloring 
cotton  and  other  materials.  In  the  process  of  dyeing  it,  of  course, 
becomes  necessary  to  dry  those  materials,  and  in  order  to  hasten 
this  process  use  is  made  of  two  machines,  called  in  the  evidence 
"whizzers,"  into  which  the  wet  mxaterial  is  placed,  and  which,  by 
being  revolved  at  great  speed,  drive  out  the  water  by  centrifugal 
force.  These  machines  are  driven  by  two  small  engines  attached  to 
them  directly,  without  intermediate  gearing,  so  that  the  engines 
must  make  the  same  number  of  revolutions  as  do  the  whizzers,  and 
the  more  rapid  the  revolution,  the  more  rapid  the  process  of  drying. 
The  principal  subject  of  litigation  was  as  to  the  effect  upon  the 
complainant's  premises  of  these  machines. 

[The  discussion  of  the  evidence  is  here  omitted.] 

The  serious  and  troublesome  question  in  the  case  is  as  to  whether 
the  vibration  established  is  of  such  a  degree  as  to  entitle  the  com- 
plainant to  the  aid  of  this  court. 

Upon  reason  and  authority  I  think  there  is  a  clear  distinction  be- 
tween that  class  of  nuisances  which  affect  air  and  light  merely,  by 
way  of  noises  and  disagreeable  gases,  and  obstruction  of  light,  and 
those  which  directly  affect  the  land  itself,  or  structures  upon  it. 
Light  and  air  are  elements  which  mankind  enjoy  in  common,  and 
no  one  person  can  have  an  exclusive  right  in  any  particular  portions 
of  either,  and  as  men  are  social  beings,  and  by  common  consent  con- 
gregate and  need  fires  to  make  them  comfortable  and  to  cook  their 
food,  it  follows  that  we  cannot  expect  to  be  able  to  breathe  air  en- 
tirely free  from  contamination,  or  that  our  ears  shall  not  be  invaded 
by  unwelcome  sounds.  Thus,  my  neighbor  may  breathe  upon  my 
land  from  his,  and  the  smoke  from  his  house  fire  and  the  vapor  from 
his  kitchen  may  come  on  to  my  land,  or  he  may  converse  in  audible 
tones  while  standing  near  the  dividing  line,  and  all  without  giving 
me  any  right  to  complain.  So  my  neighbor  and  I  ma}'  build  our 
houses  on  the  line  between  our  properties,  or  have  a  party  wall  in 
common,  so  that  we  are  each  liable  to  hear  and  be  more  or  less  dis- 
turbed by  the  noise  of  each  other's  family,  and  cannot  complain  ol 
it.  In  all  these  matters  of  the  use  of  the  common  element  —  air  — 
we  give  and  take  something  of  injury  and  aimoj^ance,  and  it  is  not 
easy  to  draw  the  line  between  reasonable  and  unreasonable  use  in 
such  eases,  affecting,  as  they  do,  mainly  the  comfort  and  in  a  small 
degree  only  the  health  of  mankind.  In  attempting  to  draw  this  line 
we  must  take  into  consideration  the  character  which  has  been  im- 
pressed upon  the  neighborhood  by  what  may  be  called  the  common 
consent  of  its  inhabitants. 

But  when  we  come  to  deal  with  what  is  individual  property',  in 
which  the  owner  has  an  exclusive  right,  the  case  is  different.  While 


CHAP.   I.]  HENNESSY    V.    CARMODY.  569 

my  neighbor  may  stand  by  my  fence  on  his  own  lot  and  breathe 
across  it  over  my  land,  and  may  permit  the  smoke  and  smell  of  his 
kitchen  to  pass  over  it,  and  maj'  talk,  laugh  and  sing  or  cry,  so  that 
his  conversation  and  hilarity  or  gi-ief  is  heard  in  my  yard,  he  has  no 
right  to  shake  my  fence  ever  so  little,  or  to  throw  sand,  earth  or 
water  upon  my  land  in  ever  so  small  a  quantity.  To  do  so  is  an  in- 
vasion of  property  and  a  trespass,  and  to  continue  to  do  so  constitutes 
a  nuisance.  And  if  he  may  not  shake  my  fence  or  my  house  by  force 
directed  immediately  against  them,  I  know  of  no  principle  by  which 
he  may  be  entitled  to  do  it  by  indirect  means. 

I  think  the  distinction  between  the  two  classes  of  injury  is  clear. 
At  the  same  time  it  would  seem  that  it  has,  in  appearance  at  least, 
been  frequently  overlooked  by  able  and  careful  judges,  and  the  same 
rules  as  to  the  degree  of  the  injury  which  will  justify  judicial  inter- 
ference applied  to  each  class. 

The  result  of  a  careful  re\dew  of  the  evidence  upon  my  mind  is 
to  lead  me  to  the  conclusion  that  the  degree  of  injury  is  such  as  to 
entitle  the  complainant  to  damages  in  an  action  at  law,  with  the 
result  that  he  is  entitled  to  an  injunction  in  this  court. 

The  injury,  to  be  actionable,  must  be  sensible  and  appreciable, 
as  distinguished  from  one  merely  fanciful,  and  in  a  case  like  this  I 
assume,  for  present  purposes,  that  it  must  have  the  effect  of  rendering 
the  premises  less  desirable,  and  so  less  valuable  for  ordinary  use  and 
occupation.  Now  it  seems  to  me  that  a  vibration  that  causes  the 
windows  and  doors  of  a  house  to  rattle  in  their  casings,  and  dishes 
on  the  shelves  to  rattle  and  move  on  one  another,  and  the  walls  to 
crack,  and  is  distinctly  felt  by  persons  in  the  house,  would  have  such 
effect,  and  is  therefore  actionable;  while  smoke  and  noise  might  have 
a  similar  effect  in  rendering  the  house  less  desirable  without  being 
actionable,  because  the  degree  of  discomfort  would  not  be  sufficiently 
great  to  reach  the  standard  —  if,  indeed,  any  standard  has  been 
established  —  applied  to  that  class  of  injuries. 

Note.  —  In  Scott  v.  Firth,  4  Fost.  &  Fin.  349,  Blackburn,  J., 
said,  in  summing  up  to  the  jury:  ''The  question  is,  whether  this  is  a 
case  of  nuisance,  that  is,  of  actionable  wrong?  If  the  defendant,  in 
the  course  of  using  these  hammers,  produced,  not  merely  a  nominal, 
but  such  a  sensible  and  real  damage  as  a  sensible  person  occupy- 
ing the  cottage  would  find  injurious,  that  is  a  nuisance;  but  that 
which  is  a  sensible  and  real  inconvenience  to  property  situate  in 
one  place,  or  occupied  in  one  way,  will  be  none  to  property  situate 
in  another  place  or  occupied  in  another  way.  If  you  are  of  opinion 
that  the  vibration  caused  by  the  hammers  has  shaken  and  cracked 
the  walls  of  the  cottages,  you  will  probably  consider  that  to  be  a 
substantial  and  real  mischief." 


570  CORBETT  V.    HILL.  [CHAP.  II, 


CHAPTER  II. 

AIR. 

COKE  UPON  LITTLETON,  4  a. 

The  earth  hath  in  law  a  great  extent  upwards,  not  only  of  water, 
as  hath  been  said,  but  of  air  and  all  other  things  even  up  to  heaven; 
for  cujis  est  solum  ejus  est  usque  ad  coelum. 


CORBETT  V.   HILL. 

L.  R.  9  Eq.  671.     1870. 

Motion  for  decree. 

By  a  deed  of  conveyance,  dated  the  23rd  of  April,  1866,  a  messuage, 
warehouse,  and  hereditaments,  situate  and  being  No.  15,  Philpot 
Lane,  "as  the  same  were  then  in  the  occupation  of"  certain  tenants, 
and  another  messuage,  warehouse,  and  hereditaments  situate  and 
being  No.  34,  Eastcheap,  in  the  city  of  London,  "as  the  same  were 
then  in  the  occupation  of  Joseph  Prime,"  were  conveyed  to  such 
uses  as  the  plaintiff,  Charles  Joseph  Corbett,  should  appoint,  and 
in  default  of  appointment  to  the  use  of  the  plaintiff  for  life,  remainder 
to  uses  to  bar  dower,  remainder  to  the  use  of  the  plaintiff  in  fee. 

By  an  indenture  dated  the  26th  of  June,  1866,  the  messuage,  ware- 
house, and  hereditaments  at  34,  Eastcheap,  "as  the  same  was  then 
lately  in  the  occupation  of  Joseph  Prime  and  then  of  the  said  Charles 
Joseph  Corbett,"  were  conveyed  by  the  plaintiff  and  another  to 
the  defendants,  Thomas  Rawley  Hill  and  Edward  Bickerton  Evans, 
their  heirs  and  assigns. 

On  each  indenture  there  was  a  plan  drawn  in  the  margin. 

Shortly  after  June,  1866,  the  defendants  began  pulling  do\Mi  the 
house  and  premises.  No.  34,  Eastcheap,  and  the  plaintiff  then  dis- 
covered that  one  of  the  rooms  on  the  first  floor  of  his  house.  No.  15, 
Philpot  Lane,  projected  into  and  was  supported  by  the  defendants' 
house.  He  also  discovered  that  a  cellar  or  vault  belonging  to  his 
house.  No.  15,  Philpot  Lane,  projected  under  the  basement-floor  of 
the  defendants'  house;  and  that,  on  the  other  hand,  a  cellar  or 
vault  belonging  to  the  defendants'  house.  No.  34,  Eastcheap,  pro- 
jected under  the  basement  of  the  plaintiff's  house. 


CHAP.  II.]  CORBETT    V.    HILL.  571 

Neither  of  these  three  projections  appeared  in  the  plans,  which 
were  of  the  ground-floor.  The  projecting  cellar  belonging  to  the 
plaintiff's  house  was  in  part  vertically  under  the  projecting  room 
belonging  to  the  plaintiff's  house. 

The  defendants,  in  rebuilding  their  premises,  No.  34,  Eastcheap, 
manifested  an  intention  of  buildmg  over  the  roof  of  the  projecting 
room;  in  other  words,  of  entering  upon  the  vertical  column  of  air 
above  the  projecting  room;  and  they  claimed  the  right  to  do  this. 

The  plaintiff,  on  the  other  hand,  claimed  the  column  of  air  above 
the  projecting  room  usque  ad  ccelum;  and,  after  a  correspondence, 
filed  the  bill  on  the  3rd  of  October,  1868.  On  the  same  day  the  blas- 
ter of  the  Rolls  granted  an  ex  -parte  injunction  to  restrain  any  further 
erection;  but  the  defendants  nevertheless  proceeded  on  the  3rd  and 
up  to  12  o'clock  on  Monday,  the  6th  of  October,  when  a  notice  to 
commit  was  served.  By  this  time  the  walls  of  the  building  over  the 
projecting  room  were  finished,  but  not  roofed  in. 

On  the  3rd  of  December,  1868,  the  defendants  moved  before  Lord 
Justice,  then  Vice-Chancellor,  Giffard,  to  dissolve  the  injunction, 
when  His  Lordship  dissolved  the  injunction,  but  reserved  the  costs 
to  the  hearing. 

The  bill  was  answered  on  the  12th  of  January,  1869,  and  amended 
on  the  9th  of  Februaiy,  and,  as  amended,  praj'ed  for  a  declaration 
that  the  projecting  room  was  not  comprised  in  the  hereditaments 
conveyed  to  the  defendants  by  the  deed  of  the  26th  of  June,  1866, 
and  for  an  injunction  to  restrain  the  defendants  from  erecting  or 
building  or  placing  any  erection  or  structure  over  or  on  the  roof  of 
the  projecting  room,  or  any  part  thereof. 

To  the  amended  bill  the  defendants,  on  the  22nd  of  March,  put 
in  a  voluntary  answer. 

Sir  W.  M.  James,  V.C.  In  this  case  the  plaintiff  seeks  an  injunc- 
tion to  prevent  the  continuance  of  a  building  which  has  been  erected 
over  a  certain  room  belonging  to  the  plaintiff,  which  protrudes  over 
the  site  of  the  defendants'  house.  No.  34,  Eastcheap. 

The  plaintiff  conveyed  that  house.  No.  34,  Eastcheap,  to  the  de- 
fendants. He  conveyed  it  by  a  plan  which  carefully  delineates  the 
site  of  the  house. 

Now  the  ordinary  rule  of  law  is,  that  whoever  has  got  the  solum  — 
whoever  has  got  the  site  —  is  the  owner  of  everything  up  to  the  sky 
and  down  to  the  centre  of  the  earth.  But  that  ordinary  presumption 
of  law,  no  doubt,  is  frequently  rebutted,  particularly  with  regard 
to  property  in  towns,  by  the  fact  that  other  adjoining  tenements, 
either  from  there  having  been  once  a  joint  oAvnership,  or  from  other 
circumstances,  protrude  themselves  over  the  site.  The  question  then 
arises,  whether  the  protrusion  is  a  diminution  of  so  much  of  the  free- 
hold, including  the  right  upwards  and  do\\Ti wards,  as  is  defined 
horizontally  by  a  section  of  the  protrusion ;  or  whether  such  a  portion 


572  LEMMON    V.    WEBB.  [CHAP.   II. 

only  is  carved  out  of  the  freehold  as  is  included  between  the  ceiling 
of  the  room  at  the  top  and  the  floor  at  the  bottom. 

In  my  opinion  the  protruding  room  here  affects  only  a  diminution 
of  the  last-mentioned  limited  character.  The  diminution  does  not 
extend  beyond  the  protrusion  itself,  which  the  plaintiff  has,  of  course, 
retained  as  part  of  his  freehold  in  Philpot  Lane.  My  opinion  is  that 
that  room  remains  part  of  the  Philpot  Lane  house;  and  that,  al- 
though part  of  the  house,  it  does  not  carry  with  it  anything  above 
it  or  anything  below;  but  that,  subject  to  the  exception  which  has 
been  obtained  or  made  by  reason  of  the  protrusion,  the  owners  of 
the  house  in  Eastcheap  still  remain  the  owners  of  everything  else, 
including  the  column  of  air  above  the  room  upon  which  the  supposed 
trespass  has  been  made. 

That  being  so,  it  seems  to  me  the  plaintiff's  case  has  failed,  and 
the  bill  must  be  dismissed  with  costs. 

The  order  will  be  that,  the  court  being  of  opinion  that  the  column 
of  air  over  so  much  of  the  room  in  the  bill  mentioned  as  projected 
over  the  site  of  the  ground  floor  of  the  house  conveyed  to  the  de- 
fendants passed  to  the  defendants,  the  bill  stand  dismissed  with 
costs,  including  the  costs  of  the  motion;  but  the  order  will  be  without 
prejudice  to  any  question  as  to  the  owTiership  of  the  room. 


LEMMON  V.  WEBB. 

[1895.]     A.  C.  1. 

Appeal  from  an  order  of  the  Court  of  Appeal. 

The  appellant  and  respondent  were  adjoining  landowners,  the 
respondent  having  bought  his  land  in  1879.  On  the  appellant's  land 
near  the  boundary  were  several  large  old  trees,  branches  of  which 
overhung  the  respondent's  land,  and  had  done  so  for  much  more 
than  twenty  years.  The  respondent,  without  giving  notice  to  the 
appellant  and  without  trespassing  on  his  land,  cut  off  a  number  of 
branches  to  the  boundary  line.  The  appellant  brought  an  action 
against  the  respondent  claiming:  firet,  a  declaration  that  the  respond- 
ent was  not  entitled  to  cut  any  overhanging  branches  when  the 
overhanging  had  continued  many  years  and  that  he  was  only  en- 
titled to  cut  recent  growth,  and  further  or  in  the  alternative  that  he 
was  not  entitled  to  enter  upon  the  appellant's  land  for  the  purpose 
of  cutting  overhanging  branches,  either  absolutely  "or  at  all  events  not 
until  after  due  notice  to  the  appellant;  secondty,  an  injunction  to 
restrain  the  respondent  from  cutting  contrary  to  the  above  declara- 
tion; thirdly,  damages  for  trespass  and  wTongful  cutting. 

Kekewich,  J.,  held  that  the  respondent  was  not  entitled  to  cut  the 
branches  without  notice  to  the  appellant  and  gave  judgment  for  the 


CHAP.  II.]  LEMMON   V.    'tt'EBB.  573 

appellant  for  £5  damages.  The  Court  of  Appeal  (Lindley,  Lopes, 
and  Kay,  L.JJ.)  reversed  that  decision  and  dismissed  the  action. 

Lord  Herschell,  L.C.  My  Lords,  the  question  raised  by  this 
appeal  is  whether,  where  branches  of  trees  overhang  the  soil  of  an- 
other person,  the  person  whose  soil  they  overhang  is  entitled  to  re- 
move those  branches  without  notice  to  his  neighbour  on  whose  side 
of  the  boundary  the  trees  grow.  It  is  not  disputed  that  if  such  notice 
be  given,  and  if  the  neighbour  do  not  remove  the  boughs,  the  per- 
son whose  land  they  overhang  would  be  entitled  to  do  so,  subject 
to  the  questions  raised  on  the  Prescription  Act  and  the  Statute  of 
Limitations,  which  I  will  deal  with  in  a  moment.  This  of  course  in- 
volves an  admission  that  against  the  will  of  the  owTier  of  the  land 
the  neighbour  cannot  insist  that  the  boughs  of  his  trees  shall  remain 
there,  the  only  question  being  whether  he  is  entitled  to  notice  so 
that  he  may  remove  the  boughs  himself,  or  whether  the  person  com- 
plaining of  them  may  remove  them.  As  regards  the  right,  the  differ- 
ence does  not  seem  to  me  to  be  one  of  extreme  importance.  In  the 
present  case,  I  think  it  is  extremely  probable  that  if  notice  had  been 
given  the  plaintiff  would  not  have  removed  the  boughs,  and  that 
the  defendant  would  have  removed  them  after  all.  Nevertheless,  if 
in  point  of  law  the  person  complaining  of  them  can  only  remove 
them  after  notice,  then  the  plaintiff  in  this  action  would  be  entitled 
to  recover. 

My  Lords,  it  might  be  a  reasonable  provision  of  the  law  that  such 
notice  should  be  required,  but  whether  it  would  be  any  great  pro- 
tection to  the  owners  of  trees  near  the  boundary  of  their  neighbour's 
land  may  be  doubted.  It  might  be  very  reasonable  that  there  should 
be  some  law  regulating  the  rights  of  neighbours  in  respect  of  trees, 
which,  if  planted  near  the  boundary,  necessarily  tend  to  overhang 
the  soil  of  a  neighbour.  It  may  be,  and  probably  is,  generally  a  very 
unneighbourl}^  act  to  cut  down  the  branches  of  overhanging  trees 
unless  they  are  really  doing  some  substantial  harm.  The  case  is  a 
very  common  one;  such  trees  constantly  do  overhang,  and  it  cer- 
tainl}'  might  call  for  the  intervention  of  the  Legislature  if  it  became 
at  all  a  common  practice  for  neighbours  to  exercise  what  may  be 
their  legal  rights  in  thus  cutting  off  what  would  frequently  be  a  con- 
siderable portion  of  the  trees  which  grow  on  the  other  side  of  their 
boundary. 

But,  my  Lords,  the  question  is  whether  there  is  any  authority  for 
the  proposition  that  notice  must  be  given  by  the  owner  of  the  land 
before  thus  removing  the  encroaching  boughs.  In  support  of  the 
proposition  that  notice  is  requisite,  not  a  single  authority  has  been 
cited.  Now  it  is  certain  that  the  boughs  of  trees  have  thus  encroached, 
and  that  those  whose  land  they  have  overhung  have  rem-oved  them, 
on  many  occasions.  Actions  in  respect  of  such  removal  have  occurred 
from  time  to  time,  tlie  point  at  issue  generally  being  whether  the 


574  LEMMON    V.    WEBB.  [CHAP.  II. 

soil  over  which  the  branches  were  spread  was  the  soil  of  the  one 
person  or  the  other;  but  I  never  heard  it  suggested  in  any  of  those 
cases  (and  certainly  I  can  remember  more  than  one  within  my  own 
experience)  that  notice  to  the  adjoining  owner  was  requisite  before 
the  boughs  could  be  removed. 

Now,  my  Lords,  what  are  the  only  authorities  to  which  appeal 
has  been  made?  They  are  cases  where  a  nuisance  has  existed  on 
neighbouring  soil,  where  the  person  complaining  of  the  nuisance 
could  only  get  rid  of  it  by  going  on  to  the  soil  of  his  neighbour;  and 
there  no  doubt  it  has  been  held  that  he  cannot  justify  going  on  to 
the  soil  of  his  neighbour  to  remove  the  nuisance  except  in  a  case  of 
emergency,  unless  he  has  first  given  his  neighbour  notice  to  remove 
it.  That  is  because  his  act  involves  an  interference  with  his  neigh- 
bour's soil  —  involves  a  trespass.  But  those  cases  of  course  are 
quite  distinguishable  from  the  present  case  where  the  act  does  not 
involve  a  trespass,  but  what  is  complained  of  is  an  encroachment  on 
the  soil  of  the  man  who  removes  the  boughs,  and  what  he  does  in 
getting  rid  of  the  encroachment  is  done  on  his  own  land,  and  there- 
fore prima  facie  needs  no  excuse  so  far  as  the  place  where  he  is  doing 
the  act  is  concerned.  The  present  case,  therefore,  seems  entirely 
distinguishable  from  those;  and  the  question  whether  there  are  any 
cases  in  which  such  a  notice  may  be  necessary  does  not  arise  here. 
The  question  is  whether  such  a  notice  is  necessary  prior  to  the  re- 
moval of  boughs  overhanging  a  man's  owti  land. 

My  Lords,  the  only  dictum  that  can  be  found  on  the  subject  is  a 
dictum  of  Best,  J.,  in  the  case  of  Earl  of  Lonsdale  v.  Nelson,  2  B. 
&  C.  at  p.  311,  a  case  which  is  not  in  point,  inasmuch  as  there  the 
court  had  to  determine  whether  the  defendant  could  do  acts  upon 
his  neighbour's  land  which  involved  considerable  interference  with 
his  rights  of  property.  Best,  J.,  says:  "Nuisances  by  an  act  of  com- 
mission are  committed  in  defiance  of  those  whom  such  nuisances 
injure,  and  the  injured  party  may  abate  them  without  notice  to  the 
person  who  committed  them,  but  there  is  no  decided  case  which 
sanctions  the  abatement  by  an  individual  of  nuisances  from  omis- 
sion, except  that  of  cutting  the  branches  of  trees  which  overhang  a 
public  road  or  the  private  property  of  the  person  who  cuts  them." 
There  is,  then,  that  dictum  of  Best,  J.,  on  tlie  point,  but  what  seems 
to  me  more  important  is  that  there  is  not  only  no  decision  but  no 
dictum  whatever  to  be  found  to  the  contrary,  and  if  we  decided  in 
favour  of  the  plaintiff's  claim  we  should  not  be  interpreting  the  law, 
we  should  be  making  the  law,  and  making  it,  not  by  the  application 
of  old  principles  to  meet  a  new  case,  but  by  laying  down  conditions 
and  limitations  for  the  exercise  of  rights  in  a  class  of  cases  which  has 
existed  as  long  as  the  growth  of  trees  and  boundaries  between  neigh- 
bours have  existed.  It  seems  to  me  to  be  a  case  in  which  it  is  out 
of  the  question  that  we  should  lay  down  any  proposition  except 


CHAP.  II.l  BUTLER    V.    FRONTIER    TELEPHONE    CO.  575 

that  which,  so  far  as  we  can  find,  has  been  regarded  as  the  law  in 
times  gone  by.  I  think,  therefore,  there  is  no  warrant  for  saying  that 
notice  was  requisite. 

Note.  —  In  Wandsworth  Board  of  Works  v.  United  Telephone  Co., 
L.  R.  13  Q.  B.  D.  904,  Fry,  L.J.,  said  (p.  927):  "As  at  present  ad- 
\'ised,  I  entertain  no  doubt  that  an  ordinary  proprietor  of  land  can 
cut  and  remove  a  wire  placed  at  any  height  above  his  freehold." 


BUTLER  V.   FRONTIER  TELEPHONE  CO. 

186  N.Y.  486.     1906. 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  fourth  judicial  department,  entered  December  6,  1905, 
affirming  a  judgment  in  favor  of  plaintiff  entered  upon  a  decision 
of  the  court  at  a  trial  term  without  a  jury. 

This  is  an  action  of  ejectment,  which  was  tried  by  consent  before 
the  court  without  a  jury.  The  trial  judge  found  as  facts  that  "the 
defendant  on  or  about  January  1,  1903,  without  the  consent  of  the 
plaintiff  and  ^\^thout  lawful  authority,  entered  upon''  his  premises 
in  the  city  of  Buffalo  "and  stretched  a  wire  over  and  across  the  same 
in  the  manner  described  in  the  complaint  and  maintained  said  wire 
upon  said  premises  until  January  10,  1903,  when  the  defendant 
removed  the  said  wire  entirely  from  plaintiff's  said  premises." 

According  to  the  allegations  of  the  complaint  the  wire  was  strung 
"about  thirty  feet  from  the  surface  of  the  ground  on  the  easterly 
side  and  slanting  to  about  twenty  feet  on  the  westerly  side,"  reached 
"across  the  entire  width  of  said  premises." 

The  trial  judge  further  found  that  "the  plaintiff  has  been  in  pos- 
session of  the  premises  described  in  the  complaint  at  all  times  men- 
tioned therein  and  since,  except  that  portion  thereof  occupied  by 
the  defendant  with  said  wire  during  the  period  specified."  The  dam- 
ages sustained  by  the  plaintiff  were  assessed  at  six  cents  for  "the  with- 
holding by  the  defendant  of  that  portion  of  the  premises  occupied 
by  said  wire  for  the  period  above  specified."  There  was  neither  alle- 
gation nor  evidence  that  the  wire  was  supported  by  any  structure 
standing  upon  the  plaintiff's  lot.  The  action  was  commenced  on  the 
5th  of  January,  1903. 

The  court  found  as  a  conclusion  of  law  that  the  plaintiff,  as  the 
owner  in  fee  of  the  premises  in  question,  "was  entitled  at  the  com- 
mencement of  this  action  to  have  said  wire  removed  from  said  prem- 
ises, and  is  entitled  to  judgment  against  the  defendant  so  declaring, 
and  for  six  cents  damages  for  withholding  said  property  and  for  the 
costs  of  this  action  .  .  ." 


576  BUTLER    V.    FRONTIER   TELEPHONE   CO.  [cHAP.  II. 

The  judgment  entered  accordingly  was  affirmed  on  appeal  to  the 
Appellate  Division  by  a  divided  vote,  and  the  defendant  now  comes 
here. 

Vann,  J.  The  question  presented  by  this  appeal  is  whether  eject- 
ment will  lie  when  the  soil  is  not  touched,  but  part  of  the  space  a 
few  feet  above  the  soil  is  occupied  by  a  telephone  wire  unlawfully 
strung  bj'  the  defendant  across  the  plaintiff's  premises?  This  ques- 
tion has  never  been  passed  upon  by  the  Court  of  Appeals  nor  bj'  the 
Supreme  Court,  except  in  the  decision  now  before  us  for  review. 
Questions  similar  but  not  identical,  as  they  related  to  overhanging 
eaves,  projecting  cornices  or  leaning  walls,  were  decided  in  favor  of 
the  defendant  in  Aiken  v.  Benedict,  39  Barb.  400,  and  Vroomanv. 
Jackson,  6  Hun,  326,  and  in  favor  of  the  plaintiff  in  Sherry  v.  F reek- 
ing, 4  Duer,  452.  In  Leprell  v.  Kleinschmidt,  112  N.Y.  364,  the 
question  as  to  the  effect  of  projecting  eaves  was  alluded  to  but  not 
decided,  because  there  was  in  that  case  "a  physical  entry  by  the 
defendant  upon  the  land  of  the  plaintiffs  and  an  unlawful  detention 
of  its  possession  from  them." 

The  precise  question  before  us  does  not  appear  to  have  been 
passed  upon  in  any  other  State,  and  upon  the  cognate  question  re- 
lating to  projecting  cornices  and  the  like,  the  authorities  are  di\'ided. 
Some  hold  that  ejectment  will  lie  because  there  is  an  actual  ouster 
or  disseisin.  Murphy  v.  BoJger,  60  Vt.  723;  McCourt  v.  Eckstein,  22 
Wis.  153;  Stedman  v.  Smith,  92  Eng.  C.  L.  1.  Others  hold  that  there 
is  not  such  a  disturbance  of  possession  as  to  sustain  an  action  in  that 
form.  Nonvalk  H.  &  L.  Co.  v.  Vernam,  75  Conn.  662;  Rasch  v.  N^oth, 
99  Wis.  285.  The  case  last  cited  does  not  overrule  the  earlier  case 
in  Wisconsin,  but  proceeds  upon  the  theory^  that  the  aerial  space  was 
occupied  by  the  projecting  eaves  of  both  parties,  one  above  the  other, 
on  opposite  sides  of  the  boundary  line.  Some  of  the  cases  hold  that  a 
court  of  equity  may  order  the  removal  of  a  projection  without  de- 
ciding whether  ejectment  will  lie  or  not.  Thus,  in  Wihyiarth  v.  Wood- 
cock, 58  Mich.  482,  485,  it  was  decided  that  equitj^  would  require  the 
removal  of  a  projecting  cornice  because  "no  remedy  at  law  is  ade- 
quate, owing  to  the  uncertainty  of  the  measure  of  damages,  to  afford 
complete  compensation."  But,  as  the  learned  court  continued: 
"No  person  can  be  pemiitted  to  reach  out  and  appropriate  the  prop- 
erty of  another  and  secure  to  himself  the  adverse  enjoyment  and 
use  thereof,  which,  in  a  few  years,  will  ripen  into  an  absolute  owner- 
ship by  adverse  possession."  See,  also,  Plummer  v.  Gloversville  Elec- 
tric Co.,  20  App.  Div.  527. 

While  some  of  the  cases  may  be  harm.onized  by  resort  to  the  dis- 
tinction between  "disseisins  in  spite  of  the  owner,  and  disseisins 
at  his  election,"  the  main  question  is  open,  and  must  be  determined 
upon  principle. 

The  defendant  concedes  that  the  plaintiff  has  a  remedy,  but  in- 


CHAP.  II.]  BUTLER    V.    FRONTIER    TELEPHONE    CO.  577 

sists  that  it  is  an  action  for  trespass,  or  to  abate  a  nuisance,  while 
the  plaintiff  claims  that  ejectment  is  a  proper  remedy  and  one  of 
especial  value  as  it  entitles  him,  if  he  needs  it,  to  a  second  trial  as  a 
matter  of  right  and  to  costs,  even  if  he  recovers  less  than  fifty  dollars 
damages.  Code  Civ.  Pro.  §§  1525,  3228. 

An  action  of  ejectment,  according  to  the  Code,  is  "an  action  to 
recover  the  immediate  possession  of  real  property."  Code  Civ.  Pro. 
§  3343,  sub.  20.  While  the  statute  to  some  extent  regulates  the 
procedure,  it  did  not  create  the  action  and  for  the  principles  which 
govern  it  resort  must  be  had  to  the  common  law.  Code  Civ.  Pro. 
§§  1496  to  1532;  Real  Property  Law,  §§  1,  218;  2  R.  S.  303. 

Without  entering  into  the  somewhat  involved  and  perplexing 
learning  upon  the  subject,  it  is  sufficient  to  say  that,  as  all  the  au- 
thorities agree,  the  plaintiff  must  show  that  he  was  formerly  in  pos- 
session, that  he  was  ousted  or  deprived  of  possession  and  that  he  has 
a  right  to  re-enter  and  take  possession.  It  is  admitted  by  the  plead- 
ings that  when  the  ware  was  put  up  the  plaintiff  was  in  possession  of 
the  entire  premises  and  that  he  was  entitled  to  the  immediate  posses- 
sion thereof  as  o\\Tier  when  the  action  was  commenced.  The  serious 
question  is  whether  he  was  deprived  of  possession  to  the  extent  neces- 
sary to  authorize  ejectment.  While  ouster  is  essential  to  the  main- 
tenance of  the  action,  it  need  not  be  entire  or  absolute,  for  it  is  suffi- 
cient if  the  defendant  is  in  partial  possession  of  the  premises  while 
the  plaintiff  is  in  possession  of  the  remainder.  Sullivan  v.  Legraves, 
2  Str.  Cases,  695;  Doe  v.  Burt,  1  T.  R.  701;  Lady  Dacre's  Case,  1 
Lev.  58;  Rowan  v.  Kelseij,  18  Barb.  484;  Otis  v.  Smith,  26  Mass.  293; 
GiUiam  v.  Bird,  8  Iredell  [Law]  280;  Reynolds  v.  Cook,  83  Va.  817; 
McDowell  V.  King,  4  Dana  [Ky.]  67;  Adams  on  Ejectment,  27; 
Newell  on  Ejectment,  38;  Warvelle  on  Ejectment,  22.  Mines,  quar- 
ries, mineral  oil  and  an  upper  room  in  a  house  are  familiar  examples. 
Is  the  unauthorized  stringing  of  a  wire  by  one  pei-son  over  the  land 
of  another  an  ouster  from  possession  to  the  extent  that  the  wire 
occupies  space  above  the  surface  as  claimed  by  the  plaintiff,  or  a 
mere  trespass  or  interference  with  a  right  incidental  to  enjojTnent 
as  claimed  by  the  defendant?  Was  the  plaintiff  in  the  undisturbed 
possession  of  his  land  when  a  portion  of  the  space  above  it  was  occu- 
pied by  the  permanent  structure  of  the  defendant,  however  small? 
Was  the  space  occupied  by  the  wire  part  of  the  land  in  the  eye  of  the 
law? 

What  is  "real  property"  ?  What  does  the  term  include  so  far  as  the 
action  of  ejectment  is  concerned?  The  answer  to  these  questions 
is  found  in  the  ancient  principle  of  law :  Cujus  est  solum,  ejus  est  usque 
ad  coelum  et  ad  inferos.  The  surface  of  the  ground  is  a  guide,  but  not 
the  full  measure,  for  within  reasonable  limitations  land  includes  not 
only  the  surface  but  also  the  space  above  and  the  part  beneatli. 
Co.  Litt.  4  a;  2  Blackstone's  Comm.  18;  3  Kent's  Com.  [14th  ed.j 


578  BUTLER   V.    FRONTIER    TELEPHONE    CO.  [cHAP.  II. 

*401.  "  Usque  ad  coelum,"  is  the  upper  boundary,  and  while  this  may 
not  be  taken  too  literally,  there  is  no  limitation  within  the  bounds 
of  any  structure  yet  erected  by  man.  So  far  as  the  case  before  us  is 
concerned,  the  plaintiff  as  the  owner  of  the  soil  owned  upward  to  an 
indefinite  extent.  He  owned  the  space  occupied  by  the  wire  and 
had  the  right  to  the  exclusive  possession  of  that  space  which  was  not 
personal  property,  but  a  part  of  his  land.  According  to  fundamental 
TJrinciples  and  within  the  limitation  mentioned  space  above  land  is 
real  estate  the  same  as  the  land  itself.  The  law  regards  the  empty 
space  as  if  it  were  a  solid,  inseparable  from  the  soil,  and  protects  ,it 
from  hostile  occupation  accordingly. 

If  the  wire  had  touched  the  surface  of  the  land  in  pennanent  and 
exclusive  occupation,  it  is  conceded  that  the  plaintiff  would  have 
been  dispossessed  pro  tanto.  A  part  of  his  premises  would  not  have 
been  in  his  possession,  but  in  the  possession  of  another.  The  extent 
of  the  disseisin,  however,  does  not  control,  for  an  owner  is  entitled 
to  the  absolute  and  undisturbed  possession  of  every  part  of  his  prem- 
ises, including  the  space  above,  as  much  as  a  mine  beneath.  If  the 
wire  had  been  a  huge  cable,  several  inches  thick  and  but  a  foot  above 
the  ground,  there  would  have  been  a  difference  in  degree,  but  not  in 
principle.  Expand  the  wire  into  a  beam  supported  by  posts  standing 
upon  abutting  lots  without  touching  the  surface  of  plaintiff's  land, 
and  the  difference  would  still  be  one  of  degree  only.  Enlarge  the 
beam  into  a  bridge,  and  yet  space  only  would  be  occupied.  Erect 
a  house  upon  the  bridge,  and  the  air  above  the  surface  of  the  land 
would  alone  be  disturbed.  Where  along  the  line  of  these  illustrations 
would  dispossession  begin?  What  rule  has  the  law  to  measure  it  by? 
How  much  of  the  space  above  the  plaintiff's  land  must  be  subjected 
to  the  dominion  of  the  defendant  in  order  to  effect  a  dispossession? 
To  what  extent  may  the  owner  be  dispossessed  and  kept  out  of  his 
own  before  there  is  a  privation  of  seisin?  Unless  the  principle  of 
usque  ad  coelum  is  abandoned  any  physical,  exclusive  and  permanent 
occupation  of  space  above  land  is  an  occupation  of  the  land  itself 
and  a  disseisin  of  the  owner  to  that  extent. 

The  authorities,  both  ancient  and  modern,  with  some  exceptions 
not  now  important,  agree  that  the  ability  of  the  sheriff  to  deliver 
possession  is  a  test  of  the  right  to  maintain  an  action  of  ejectment. 
Jackson  v.  Buel,  9  Johns.  298;  Woodhull  v.  Rosenthal,  61  N.Y.  382, 
389;  Patch  v.  Keeler,  27  Vt.  252,  255;  Warvelle  on  Ejectment,  34; 
Crabb  on  Real  Property,  710;  Butler's  Nisi  Prius,  99.  "The  rule 
now  is,  that  when  the  property  is  tangible  and  an  entry  can  be  made 
and  possession  be  delivered  to  the  sheriff,  this  action  will  lie." 
Nichols  V.  Lewis,  15  Conn.  137.  The  defendant  insists  that  the 
sheriff  cannot  give  possession  of  space  an}'  more  than  he  can  deliver 
water  in  a  running  stream  or  "air  whirled  by  the  north  wind."  When 
the  space  over  land  is  unoccupied  there  is  no  occasion  for  delivery, 


CHAP.  II.]  BUTLER    V.    FROXTIER    TELEPHONE    CO.  579 

because  there  is  nothing  to  exclude  the  o^vner  from  possession  The 
sheriff,  however,  can  deliver  occupied  space  by  removing  the  occupy- 
ing structure.  All  that  he  does  to  deliver  possession  of  the  surface 
of  land,  or  of  a  mine  under  the  surface,  is  to  remove  either  per- 
sons or  things  which  keep  the  owTier  out.  He  does  not  carry  the 
plaintiff  upon  the  land  and  thus  put  him  in  possession,  but  he 
simply  removes  obstructions  which  theretofore  had  prevented  him 
from  entering.  So,  in  this  case,  that  officer  can  deliver  possession 
by  removing  the  wire,  the  same  as  he  would  if  one  end  happened 
to  be  embedded  in  the  soil,  when  no  question  as  to  the  right  to 
bring  ejectment  could  arise.  Where  there  is  a  visible  and  tangible 
structure  by  which  possession  is  withheld  to  the  extent  of  the  space 
occupied  thereby  ejectment  will  lie,  because  there  is  a  disseisin  meas- 
ured by  the  size  of  the  obstruction,  and  the  sheriff  can  physically 
remove  the  structure  and  thereby  restore  the  owner  to  possession. 

The  smallness  of  the  wire  in  question  does  not  affect  the  controlling 
principle,  for  it  was  large  enough  to  prevent  the  plaintiff  from  build- 
ing to  a  reasonable  height  upon  his  lot.  The  prompt  removal  of  the 
wire  after  the  suit  was  brought  could  not  defeat  the  action  because 
the  rights  of  the  parties  to  an  action  at  law  are  governed  by  the  facts 
as  they  existed  when  it  was  commenced.  Wisner  v.  Ocumpaugh,  71 
N.Y.  113. 

The  judgment  should  be  affirmed,  with  costs. 

CuLLEN,  Ch.J.,  Edw^ard  T.  Bartlett,  Willard  Bartlett  and 
Chase,  JJ.,  concur;  O'Brien  and  Haight,  JJ.,  absent. 

Judgment  affirmed. 

Note.  —  In  Fay  v.  Prentice,  1  C.  B.  828,  Coltiman,  J.,  said  (p.  838) : 
"  The  mere  fact  of  the  defendants'  cornice  overhanging  the  plain- 
tiff's land,  may  be  considered  as  a  nuisance  to  him,  importing  a 
damage  which  the  law  can  estimate." 

In  Wandsworth  Board  of  Works  v.  United  Tele-phone  Co.,  L.  R. 
13  Q.  B.  D.  904,  Bowen,  L.J.,  said  (p.  919):  "If  the  board  of  works 
were  in  the  position  of  simple  owners  of  land,  or  if  land  had  been 
vested  in  them  by  an  ordinary  conveyance,  I  should  be  extremely 
loth  myself  to  suggest,  or  to  acquiesce  in  any  suggestion,  that  an 
owner  of  the  land  had  not  the  right  to  object  to  anybody  putting 
anything  over  his  land  at  an}'  height  in  the  sky." 

In  Smith  v.  Giddy,  [1904]  2  K,  B.  448,  it  was  held  that  an  action 
lies  against  an  adjoining  landowmer  for  allowing  his  trees  to  over- 
hang the  boundary  to  the  damage  of  the  jolaintiff 's  crops. 

In  Smith  v.  Smith,  110  Mass.  302,  Morton,  J.,  said  (p.  303) :  "  This 
is  an  action  of  tort  in  the  nature  of  trespass  quare  clausum  fregit. 
The  plaintiff  in  his  declaration,  among  other  acts  of  trespass,  alleges 
that  the  defendant  built  a  part  of  his  bam  upon  the  plaintiff's  close, 
and  thereby  put  and  kept  the  plaintiff  out  of  the  possession  and 


580  CLIFTON    V.    BURY.  [CHAP.  II. 

occupation  of  a  part  of  the  close.  We  think  it  was  competent  for 
the  plaintiff  to  prove  that  the  eaves  of  the  defendant's  barn  pro- 
jected over  the  plaintiff's  close.  Projecting  his  eaves  over  the  plain- 
tiff's land  is  a  wrongful  act  on  the  part  of  the  defendant  which,  if 
continued  for  twenty  years,  might  give  him  a  title  to  the  land  by 
adverse  occupation.  It  is  a  wrongful  occupation  of  the  plaintiff's 
land  for  which  he  may  maintain  an  action  of  trespass." 


CLIFTON  V.  BURY. 

4  Times,  Law  Reports,  8.     1887. 

This  was  an  action  to  restrain  the  12th  Middlesex  (or  Civil 
Service)  Volunteer  Corps  from  shooting  over  a  certain  range  on 
Wimbledon  Common  to  the  detriment  of  the  plaintiff's  land. 

'Mju  Justice  Hawkins  delivered  an  opinion,  a  part  of  which  fol- 
lows :  — 

As  regards  the  complaint  that  when  the  1000  yards  range  was 
used  the  bullets  traversed  the  land  of  the  plaintiff,  His  Lordship  did 
not  look  upon  the  ground  of  complaint  as  constituting  a  trespass 
in  the  strict  technical  sense  of  the  term;  but  he  did  look  upon  such 
firing  of  bullets  as  grievances  which,  under  the  circumstances, 
afforded  the  plaintiff  a  legal  cause  of  action.  It  was  said  that  no 
damage  was  proved  to  have  arisen  to  the  plaintiff.  In  one  sense 
that  was  true,  for  no  actual  injury  had  been  occasioned  to  him  per- 
sonally or  to  his  land,  and  no  bullet  was  proved  to  have  fallen  upon 
it  during  the  use  of  that  range.  Probably  the  fall  of  a  bullet  on  the 
land  would  be  a  very  rare  occurrence.  Still,  though  the  land  dipped 
in  the  part  of  the  farm  traversed,  and  though  the  height  of  the  tra,- 
jectory  above  the  surface  would  ordinarily  be  75  feet,  according  to 
the  evidence,  the  traversing  of  the  land  by  the  bullets  in  the  use  of 
the  1000  yards  range  was  not  unattended  mth  risk,  and  certainly 
it  would  cause  a  not  unreasonable  alarm,  which  rendered  the  occu- 
pation of  that  part  of  the  farm  less  enjoyable  than  the  plaintiff  was 
entitled  to  have  it.  His  Lordship  was  satisfied,  therefore,  that  the 
plaintiff  had  a  legal  grievance  sufficient  to  enable  him  to  maintain 
an  action. 

Note.  —  See  Whittaker  v.  Stangvick,  100  Minn.  386. 

In  Pickering  v.  Rudd,  1  Starkie  56,  Lord  ELLENBORorcH  said 
(p.  58):  "You  must  prove  that  the  projection  is  a  trespass;  it  may 
be  a  very  nice  question.  —  I  recollect  a  case,  where  I  held  that  firing 
a  gun  loaded  with  shot  into  a  field  was  a  breaking  of  the  close.  The 
leariled  judge  on  the  circuit  with  me,  doubted  upon  the  point,  but 
many  with  whom  I  afterwards  conversed  on  the  subject  thought  1 


CHAP.  II.]  STURGES    V.    BRIDGMAN.  581 

was  right;  and  the  judge  himself,  who  at  first  differed  from  me, 
was  afterwards  of  the  same  opinion;  but  I  never  yet  heard,  that  fir- 
ing in  vacuo  could  be  considered  as  a  trespass.  No  doubt,  if  j'ou 
could  prove  any  inconvenience  to  have  been  sustained,  an  action 
might  be  maintained:  but  it  may  be  questionable,  whether  an  action 
on  the  case  would  not  be  the  proper  fonn.  Would  trespass  lie  for 
passing  through  the  air  in  a  balloon  over  the  land  of  another?" 

In  Kenyan  v.  Hart,  6  B.  &  S.  249,  Blackburn,  J.,  said  (p.  252)  : 
"That  case  raises  the  old  queiy  of  Lord  Ellenborough  as  to  a  man 
passing  over  the  land  of  another  in  a  balloon:  he  doubted  whether 
an  action  of  trespass  would  lie  for  it.  I  understand  the  good  sense 
of  that  doubt,  though  not  the  legal  reason  of  it." 

In  Smith  v.  Giddy,  [1904]  2  K.  B.  448,  Kennedy,  J.,  said  (p.  451): 
"If  trees,  although  projecting  over  the  boundary',  are  not  in  fact 
doing  any  damage,  it  may  be  that  the  plaintiff's  only  right  is  to  cut 
back  the  overhanging  portions." 


STURGES  V.  BRIDGMAN. 

L.  R.  II  Ch.  D.  852.     1879. 

The  plaintiff  in  this  case  was  a  physician.  In  the  year  1865  he 
purchased  the  lease  of  a  house  in  Wimpole  Street,  London,  which  he 
occupied  as  his  professional  residence. 

Wimpole  Street  runs  north  and  south,  and  is  crossed  at  right 
angles  by  Wigmore  Street.  The  plaintiff's  house  was  on  the  west 
side  of  Wimpole  Street,  and  was  the  second  house  from  the  north 
side  of  Wigmore  Street.  Behind  the  house  was  a  garden,  and  in 
1873  the  plaintiff  erected  a  consulting-room  at  the  end  of  this  gar 
den. 

The  defendant  was  a  confectioner  in  large  business  in  Wigmore 
Street.  His  house  was  on  the  north  side  of  Wigmore  Street  and  his 
kitchen  was  at  the  back  of  his  house,  and  stood  on  ground  which 
was  formerly  a  garden  and  abutted  on  the  portion  of  the  plaintiff's 
garden  on  which  he  built  the  consulting-room.  So  that  there  was 
nothing  between  the  plaintiff's  consulting-room  and  the  defendant's 
kitchen  but  the  party-wall.  The  defendant  had  in  his  kitchen  two 
large  marble  mortars  set  in  brickwork  built  up  to  and  against  the 
party-wall  which  separated  his  kitchen  from  the  plaintiff's  fonsult- 
ing-room,  and  worked  by  two  large  wooden  pestles  held  in  an  up- 
right position  by  horizontal  bearers  fixed  into  the  party-wall.  These 
mortars  were  used  for  breaking  up  and  pounding  loaf-sugar  and 
other  hard  substances,  and  for  pounding  meat. 

The  plaintiff  alleged  that  when  the  defendant's  pestles  and  mor- 
tars were  being  used  the  noise  and  vibration  thereby  caused  were 


582  STURGES    V.    BRIDGMAN.  [cHAP.  II. 

very  great,  and  were  heard  and  felt  in  the  plaintiff's  consulting- 
room,  and  such  noise  and  vibration  seriously  annoyed  and  disturbed 
the  plaintiff,  and  materially  interfered  with  him  in  the  practice  of 
his  profession.  In  particular  the  plaintiff  stated  that  the  noise  pre- 
vented him  from  examining  his  patients  by  auscultation  for  dis- 
eases of  the  chest>  He  also  found  it  impossible  to  engage  with  effect 
in  any  occupation  which  required  thought  and  attention. 

The  use  of  the  pestles  and  mortars  varied  with  the  pressure  of  the 
defendant's  business,  but  they  were  generally  used  between  the 
hours  of  10  A.M.  and  1  p.m. 

The  plaintiff  made  several  complaints  of  the  annoyance,  and  ulti- 
mately brought  this  action,  in  which  he  claimed  an  injunction  to 
restrain  the  defendant  from  using  the  pestles  and  mortars  in  such 
manner  as  to  cause  him  annoyance. 

The  defendant  stated  in  his  defence  that  he  and  his  father  had 
used  one  of  the  pestles  and  mortars  in  the  same  place  and  to  the 
same  extent  as  now  for  more  than  sixty  years,  and  that  he  had  used 
the  second  pestle  and  mortar  in  the  same  place  and  to  the  same  ex- 
tent as  now  for  more  than  twenty-six  years.  He  alleged  that  if  the 
plaintiff  had  built  his  consulting-room  with  a  separate  wall,  and 
not  against  the  wall  of  the  defendant's  kitchen,  he  would  not  have 
experienced  any  noise  or  vibration;  and  he  denied  that  the  plaintiff 
suffered  any  serious  annoyance,  and  pleaded  a  prescriptive  right  to 
use  the  pestles  and  mortars  under  the  2  &  3  Will.  4,  c.  71. 

Issue  was  joined,  and  both  parties  went  into  evidence.  The  re- 
sult of  the  evidence  was  that  the  existence  of  the  nuisance  was,  in 
the  opinion  of  the  court,  sufficiently  proved;  and  it  also  appeared 
that  no  material  inconvenience  had  been  felt  by  the  plaintiff  until 
he  built  his  consulting-room. 

Thesiger,  L.J.  The  defendant  in  this  case  is  the  occupier,  for  the 
purpose  of  his  business  as  a  confectioner,  of  a  house  in  Wigmore 
Street.  In  the  rear  of  the  house  is  a  kitchen,  and  in  that  kitchen 
there  are  now,  and  have  been  for  over  twenty  years,  two  large  mor- 
tars in  which  the  meat  and  other  materials  of  the  confectionery  are 
pounded.  The  plaintiff,  who  is  a  physician,  is  the  occupier  of  a  house 
in  Wimpole  Street,  which  until  recently  had  a  garden  at  the  rear, 
the  wall  of  which  garden  was  a  party-wall  between  the  plaintiff's 
and  the  defendant's  premises,  and  formed  the  back  wall  of  the  de- 
fendant's kitchen.  The  plaintiff  has,  however,  recently  built  upon 
the  site  of  the  garden  a  consulting-room,  one  of  the  side  walls  of 
which  is  the  wall  just  described.  It  has  been  proved  that  in  the  case 
of  the  mortars,  before  and  at  the  time  of  action  brought,  a  noise  was 
caused  which  seriously  inconvenienced  the  plaintiff  in  the  use  of 
his  consulting-room,  and  which,  unless  the  defendant  had  acquired 
a  right  to  impose  the  inconvenience,  would  constitute  an  action- 
able nuisance.    The  defendant  contends  that  he  had  acquired  the 


CHAP.  II.]  STURGES    V.    BRIDGMAN.  583 

right,  either  at  common  law  or  under  the  Prescription  Act,  by  un- 
interrupted user  for  more  than  twenty  years. 

In  deciding  this  question  one  more  fact  is  necessary  to  be  stated. 
Prior  to  the  erection  of  the  consulting-room  no  material  annoyance 
or  inconvenience  was  caused  to  the  plaintiff  or  to  any  previous  occu- 
pier of  the  plaintiff's  house  by  what  the  defendant  did.  It  is  true 
that  the  defendant  in  the  7th  paragraph  of  his  affidavit  speaks  of  an 
invalid  lady  who  occupied  the  house  upon  one  occasion,  about  thirty 
years  before,  requesting  him  if  possible  to  discontinue  the  use  of  the 
mortars  before  eight  o'clock  in  the  morning;  and  it  is  true  also  that 
there  is  some  evidence  of  the  garden  wall  having  been  subjected  to 
vibration,  but  this  vibration,  even  if  it  existed  at  all,  was  so  slight, 
and  the  complaint,  if  it  could  be  called  a  complaint,  of  the  invalid 
lady,  and  can  be  looked  upon  as  evidence,  was  of  so  trifling  a  charac- 
ter, that,  upon  the  maxim  de  minimis  non  curat  lex,  we  arrive  at  the 
conclusion  that  the  defendant's  acts  would  not  have  given  rise  to 
any  proceedings  either  at  law  or  in  equity.  Here  then  arises  the 
objection  to  the  acquisition  by  the  defendant  of  any  easement. 
That  which  was  done  by  him  was  in  its  nature  such  that  it  could  not 
be  physically  interrupted;  it  could  not  at  the  same  time  be  put  a 
stop  to  by  action.  Can  user  which  is  neither  preventible  nor  action- 
able found  an  easement?  We  think  not.  The  question,  so  far  as 
regards  this  particular  easement  claimed,  is  the  same  question 
whether  the  defendant  endeavours  to  assert  his  right  by  common 
law  or  under  the  Prescription  Act.  That  act  fixes  periods  for  the 
acquisition  of  easements,  but,  except  in  regard  to  the  particular 
easement  of  light,  or  in  regard  to  certain  matters  which  are  immate- 
rial to  the  present  inquiry,  it  does  not  alter  the  character  of  ease- 
ments, or  of  the  user  or  enjojTnent  by  which  they  are  acquired. 
This  being  so,  the  laws  governing  the  acquisition  of  easements  by 
user  stands  thus:  Consent  or  acquiescence  of  the  owner  of  the  servien 
tenement  lies  at  the  root  of  prescription,  and  of  the  fiction  of  a  lost 
grant,  and  hence  the  acts  or  user,  which  go  to  the  proof  of  either 
the  one  or  the  other,  must  be,  in  the  language  of  the  civil  law,  nee 
vi  nee  clam  nee  precario;  for  a  man  cannot,  as  a  general  rule,  be  said 
to  consent  to  or  acquiesce  in  the  acquisition  by  his  neighbour  of 
an  easement  through  an  enjojinent  of  which  he  has  no  knowledge, 
actual  or  constructive,  or  which  he  contests  and  endeavours  to  inter- 
rupt, or  which  he  temporarily  licenses.  It  is  a  mere  extension  of 
the  same  notion,  or  rather  it  is  a  principle  into  which  by  strict  anal- 
ysis it  may  be  resolved,  to  hold,  that  an  enjojTuent  which  a  man  can- 
not prevent  raises  no  presumption  of  consent  or  acquiescence.  Upon 
this  principle  it  was  decided  in  Webb  v.  Bird,  13  C.  B.  (N.S.)  841, 
that  currents  of  air  blowing  from  a  particular  quarter  of  the  com- 
pass, and  in  Chasemore  v.  Richards,  7  H.  L.  C.  349,  that  subterra- 
nean water  percolating  through  the  strata  in  no  known  channels 


584  STURGES   V.    BRIBQMAN.  [CHAP.  II. 

could  not  be  acquired  as  an  easement  by  user;  and  in  Angus  v.  DaU 
ton,  4  Q.  B.  D.  162,  a  case  of  lateral  support  of  buildings  by  adjacent 
soil,  which  came  on  appeal  to  this  court,  the  principle  was  in  no 
way  impugned,  although  it  was  held  by  the  majority  of  the  court 
not  to  be  applicable  so  as  to  prevent  the  acquisition  of  that  particu- 
lar easement.  It  is  a  principle  which  must  be  equally  appropriate 
to  the  case  of  affirmative  as  of  negative  easements;  in  other  words, 
it  is  equally  unreasonable  to  imply  your  consent  to  your  neighbour 
enjoying  something  which  passes  from  your  tenement  to  his,  as  to 
his  subjecting  your  tenement  to  something  which  comes  from  his, 
when  in  both  cases  you  have  no  power  of  prevention.  Bvt  the 
affirmative  easement  differs  from  the  negative  easement  in  this,  that 
the  latter  can  under  no  circumstances  be  interrupted  except  by 
acts  done  upon  the  servient  tenement,  but  the  former,  constitu\ing, 
as  it  does,  a  direct  interference  w^th  the  enjoyment  by  the  servient 
owner  of  his  tenement,  may  be  the  subject  of  legal  proceedings  as 
well  as  of  phj'sical  interruption.  To  put  concrete  cases  —  the  pas- 
sage of  light  and  air  to  your  neighbour's  windows  may  be  physically 
interrupted  by  you,  but  gives  you  no  legal  grounds  of  complaint 
against  him.  The  passage  of  water  from  his  land  on  to  yours  may 
be  physical!}'  interrupted,  or  may  be  treated  as  a  trespass  and  made 
the  ground  of  action  for  damages,  or  for  an  injunction,  or  both. 
Noise  is  similar  to  currents  of  air  and  the  flow  of  subterranean  and 
uncertain  streams  in  its  practical  incapability  of  physical  interrup- 
tion, but  it  differs  from  them  in  its  capability  of  grounding  an  action. 
Webb  V.  Bird  and  Chasemore  v.  Richards  are  not,  therefore,  direct 
authorities  governing  the  present  case.  They  are,  however,  illustra- 
tions of  the  principle  which  ought  to  govern  it;  for  until  the  noise, 
to  take  this  case,  became  an  actionable  nuisance,  which  it  did  not 
at  any  time  before  the  consulting-room  was  built,  the  basis  of  the 
presumption  of  the  consent,  viz.,  the  power  of  prevention  physically 
or  by  action,  was  never  present. 

It  is  said  that  if  this  principle  is  applied  in  cases  like  the  present, 
and  were  carried  out  to  its  logical  consequences,  it  would  result  in 
the  most  serious  practical  inconveniences,  for  a  man  might  go  —  say 
into  the  midst  of  the  tanneries  of  Bermondsey,  or  into  an}'  other 
locality  devoted  to  a  particular  trade  or  manufacture  of  a  noisy  or 
unsavoury  character,  and,  by  building  a  private  residence  upon  a 
vacant  piece  of  land,  put  a  stop  to  such  trade  or  manufacture  alto- 
gether. The  case  also  is  put  of  a  blacksmith's  forge  built  away  from 
all  habitations,  l^ut  to  which,  in  course  of  time,  habitations  approach. 
We  do  not  think  that  either  of  these  hj-pothetical  cases  presents  any 
real  difficulty.  As  regards  the  first,  it  may  be  answered  that  whether 
anything  is  a  nuisance  or  not  is  a  question  to  be  determined,  not 
merely  by  an  abstract  consideration  of  the  thing  itself,  but  in  refer- 
ence to  its  circumstances;  what  would  be  a  nuisance  in  Belgrave 


CHAP.  II.]  HURLBUT  V.   McKONE.  585 

Square  would  not  necessarily  be  so  in  Bermondsey;  and  where  a 
locality  is  devoted  to  a  particular  trade  or  manufacture  carried  on 
by  the  traders  or  manufacturers  in  a  particular  and  established  man- 
ner not  constituting  a  public  nuisance,  judges  and  juries  would  be 
justified  in  finding,  and  may  be  trusted  to  find,  that  the  trade  or 
manufacture  so  carried  on  in  that  locality  is  not  a  private  or  action- 
able wrong.  As  regards  the  blacksmith's  forge,  that  is  really  an 
idem  per  idem  case  with  the  present.  It  would  be  on  the  one  hand 
in  a  very  high  degree  unreasonable  and  undesirable  that  there  should 
be  a  right  of  action  for  acts  which  are  not  in  the  present  condition 
of  the  adjoining  land,  and  possibly  never  will  be  any  annoyance  or 
inconvenience  to  either  its  owner  or  occupier;  and  it  would  be  on  the 
other  hand  in  an  equal  degree  unjust,  and,  from  a  public  point  of 
view,  inexpedient  that  the  use  and  value  of  the  adjoining  land  should, 
for  all  time  and  under  all  eircumstances,  be  restricted  and  diminished 
by  reason  of  the  continuance  of  acts  incapable  of  physical  interrup- 
tion, and  which  the  law  gives  no  power  to  prevent.  The  smith  in 
the  case  supposed  might  protect  himself  by  taking  a  sufficient  curti- 
lage to  ensure  what  he  does  from  being  at  any  time  an  aimoyance 
to  his  neighbour,  but  the  neighbour  himself  would  be  powerless  in 
the  matter.  Individual  cases  of  hardship  may  occur  in  the  strict 
carrying  out  of  the  principle  upon  which  we  found  our  judgment, 
but  the  negation  of  the  principle  would  lead  even  more  to  individual 
hardship,  and  would  at  the  same  time  produce  a  prejudicial  effect 
upon  the  development  of  land  for  residential  purposes.  The  Master 
of  the  Rolls  in  the  court  below  took  substantially  the  same  view  of 
the  matter  as  ourselves  and  gi-anted  the  relief  which  the  plaintiff 
prayed  for,  and  we  are  of  opinion  that  his  order  is  right  and  should 
be  affirmed,  and  that  this  appeal  should  be  dismissed  with  costs. 


HURLBUT  V.  McKONE. 

55  Conn.  31.     1887. 

Suit  for  an  injunction  against  the  continuance  of  a  nuisance  and 
for  damages;  brought  to  the  Superior  Court  in  Hartford  County. 
The  complaint  alleged  the  plaintiff's  ownership  of  a  house  and  lot 
on  Governor  Street,  in  the  city  of  Hartford,  and  his  occupancy 
thereof  as  a  residence;  and  that  the  defendants,  in  May,  1884,  owned 
and  possessed  a  lot  of  land  on  Sheldon  Street,  adjoining  the  plain- 
tiff's lot,  and  erected  thereon  a  wooden  building,  some  sixty  by 
thirty  feet  and  two  stories  high,  within  a  few  inches  of  the  i)laintiff's 
lot,  one  end  of  which  is  about  twenty  feet  from  the  plaintiff's  wooden 
dwelling-house,  and  the  otiior  two  feet  from  his  barn,  and  put  therein 
a  steam  engine,  circular  band  and  cut-off  saws,  planing,  molding, 


586  HURLBUT    V.    McKONE.  [cHAP.  II. 

mortising  and  variety  molding  machines,  and  have  ever  since  owned 
and  operated  said  machines  in  their  business  of  builders,  and  in  so 
doing  have  used  said  machines  daily;  and  that  the  use  of  said  ma- 
chines makes  so  loud  a  noise  as  to  render  it  impossible,  while  they 
are  being  operated,  to  hear  ordinary  conversation  in  the  plaintiff's 
house,  and  when  operated  together  the  noise  is  intolerable,  and  from 
their  use  dense  volumes  of  smoke  and  cinders  fill  the  plaintift's  house 
and  premises,  and  cause  great  discomfort  to  him  and  his  family,  and 
by  the  noise,  smoke  and  cinders  the  plaintiff  and  his  famil}^  are  har- 
assed, annoyed,  their  health  endangered,  and  the  premises  rendered 
uncomfortable  and  unfit  for  habitation,  and  his  carpets,  furniture 
and  clothing  soiled  and  damaged,  and  his  property  greatly  reduced 
in  value. 

The  case  was  heard  before  Andrews,  J.,  who  made  the  following 
finding  of  facts:  The  plaintiff  and  the  defendants  are  respectively 
the  owners  and  in  the  occupation  of  the  lots  of  land  of  which  they 
are  severally  described  in  the  complaint  as  being  the  owners.  The 
land  of  the  defendants  abuts  on  the  lot  of  the  plaintiff,  so  that  the 
southeast  comer  of  the  defendants'  land  is  only  twenty-one  feet 
from  the  plaintiff's  house.  The  plaintiff  occupies  the  lower  part  of 
his  dwelling-house  for  himself  and  family;  the  upper  part  he  rents 
to  tenants.  In  the  summer  and  fall  of  1884  the  defendants  erected 
on  their  lot,  close  to  their  easterly  and  southerly  line,  a  two-story 
wooden  building,  in  which  they  placed  a  steam  boiler  and  engine 
to  supply  motive  power  for  various  machines,  which  also  they 
placed  in  the  building,  and  which  they  have  continued  to  operate 
from  that  time  to  the  present  time,  namely,  two  planing  machines, 
a  moulding  machine,  a  mortising  machine,  a  cut-off  saw,  a  buzz-saw, 
and  a  whip-saw.  The  defendants  are  contractors  and  builders,  and 
use  the  machinery  in  their  own  business.  They  employ  steadily 
but  two  men  in  operating  the  machines.  At  times,  however,  when 
there  is  a  pressure  in  their  business,  they  employ  more,  sometimes 
as  many  as  five  or  six.  Tha  machinery  is  used  only  in  the  day  time, 
between  the  hours  of  six  in  the  morning  and  six  in  the  afternoon. 
They  use  the  shavings  and  saw-dust  from  their  machines  for  fuel 
to  generate  steam.  Such  light  and  combustible  fuel  makes  a  great 
deal  of  smoke  and  cinders.  The  machinery,  whenever  it  is  in  motion, 
makes  much  noise;  so  great  is  the  noise  of  the  machinery,  and  so 
near  is  it  to  the  plaintiff's  house,  that  when  it  is  in  motion  it  is  im- 
possible for  the  plaintiff  or  the  members  of  his  family  to  read,  write 
or  carry  on  conversation  without  great  difficulty.  It  causes  the  house 
to  jar  so  that  the  windows  rattle  in  the  casings;  dishes  and  other 
like  things  standing  on  the  table  or  on  shelves  will  shake  and  jolt 
together.  The  health  of  the  plaintiff  and  his  family  has  been  injured. 
A  tenant  in  the  house,  a  Mrs.  Whiting,  was  sick  there  and  died.  Her 
medical  attendant  testified  in  court  that  she  suffered  greatly  from 


CHAP.  II.]  HTJRLBUT   V.    McKONE.  587 

the  noise  of  the  defendants'  machinery,  and  that  her  disease  was 
aggravated  and  her  death  hastened  by  it.  The  wife  of  the  plaintiff, 
being  in  a  deHcate  state  of  health,  has  suffered  very  much  from  head- 
aches caused  by  the  noise.  The  value  of  the  house  has  been  and  is 
greatly  impaired,  especially  its  rental  value.  The  plaintiff  has  been 
unable  to  procure  tenants,  and  such  as  he  does  procure  are  unwilling 
to  pay  as  much  rent  as  he  before  received.  The  smoke  and  cinders 
from  the  defendants'  chimney  came  into  the  plaintiff's  yard  and 
into  his  house  whenever  a  door  or  a  window  was  opened.  Clothes 
in  the  yard  hung  out  to  dry  were  made  foul  so  that  they  had  to  be 
washed  again.  Everything  in  the  house  was  soiled  —  the  floors, 
carpets,  walls,  windows,  curtains,  and  even  the  table  on  which  they 
ate  their  meals.  Upon  more  than  one  occasion  the  plaintiff  and  his 
familj'  were  unable  to  eat  the  meal  which  had  been  prepared  for  them, 
so  dense  and  noisome  was  the  smoke  which  came  into  the  house  from 
the  defendants'  mill.  In  some  or  all  of  these  ways  the  plaintiff  has 
been  troubled,  annoyed,  injured,  discomforted,  and  distressed,  and 
the  house  made  almost  uninhabitable,  ever  since  the  defendants 
erected  their  mill. 

Sheldon  Street,  on  which  the  defendants  live,  runs  east  from  Main 
Street  to  Commerce  Street.  On  this  street  there  are  various  manu- 
facturing establishments  in  which  machinery  is  used.  The  property 
next  west  of  the  defendants'  premises  is  owned  by  the  National 
Screw  Company.  This  property  runs  clear  across  from  Sheldon  Street 
to  Charter  Oak  Street,  and  at  the  rear  of  the  plaintiff's  lot.  It  is 
occupied  by  various  tenants  engaged  in  various  manufacturing  enter- 
prises, to  wit:  American  Paper  Barrel  Company,  Bailey  Letter 
Press  Company,  Capewell  Horse  Nail  Company,  Mather  Electric 
Light  Company,  Strickland  &  Shay's  sawing,  turning  and  planing 
mill,  and  Ricken's  planing  and  molding  mill.  In  the  latter  mill, 
which  is  immediately  in  the  rear  of  the  defendants'  premises  (but 
with  other  buildings  between),  and  distant  about  one  hundred 
and  fifty  feet,  are  two  planing  machines  of  much  greater  size  and 
power  than  the  planer  of  the  defendants.  The  noise  made  by 
a  planing  machine  does  not  depend  upon  the  size  or  the  power  of 
the  machine,  but  upon  the  width  of  the  board  which  is  being 
planed. 

Within  one  thousand  or  fifteen  hundred  feet  of  the  defendants' 
premises  there  are  a  number  of  other  manufacturing  establishments, 
and  the  neighborhood  within  the  distance  above  stated  is  largely 
occupied  by  mechanics  and  by  tenement  houses. 

The  noise  made  by  the  defendants'  machinery  when  running  is 
perhaps  less  than  some  of  the  other  noises  made  within  the  neigh- 
l^orhood.  A  noise,  however,  may  be  an  extreme  and  perhaps  an 
intolerable  nuisance  to  one  who  lives  within  a  few  feet  or  yards  of 
it,  while  to  a  person  a  little  removed,  especially  if  other  objects  inter- 


588  HURLBUT    V.    McKONE.  [CHAP.  IL 

vene,  although  he  is  within  reach  of  the  sound,  it  may  be  of  no  in- 
convenience at  all. 

Since  the  commencement  of  this  suit  the  defendants  have  re-set 
their  boiler  and  engine,  and  have  built  a  large  and  high  smolce-stack, 
so  that  the  annoyance  to  the  plaintiff  from  smoke  and  cinders  is 
mostly,  but  not  quite  wholly,  abated. 

Upon  these  facts  the  court  assessed  the  damages  at  one  thousand 
dollars,  but  in  view  of  the  change  made  by  the  defendants  in  the 
mode  of  operating  their  works,  held  the  injunction  praj'ed  for  to  be 
unnecessary  and  did  not  grant  it.  The  defendants  appealed. 

LooMis,  J.  This  surely  was  no  trifling  inconvenience  which  the 
civilities  of  good  neighborhood,  in  a  thickly  settled  and  industrious 
community,  recjuired  the  plaintiff  to  bear  in  silence,  nor  vras  it  a 
matter  painful  merely  to  a  cultivated  taste,  but  the  finding  makes 
it,  beyond  all  controversy,  a  matter  of  great  physical  discomfort, 
powerfully  affecting  the  comfortable  enjo^Tnent  of  the  plaintiff's 
home,  and  impairing  the  health  of  his  family  and  the  value  of  his 
property. 

But  it  is  suggested  that  the  defendants'  business  was  yer  se  lawful, 
and  the  use  made  of  their  own  property  was  reasonable. 

We  concede  that  the  law  will  not  interfere  with  a  use  that  is  rea- 
sonable. But  the  question  of  reasonable  use  is  to  be  determined  in 
view  of  the  rights  of  others.  Even  a  cooking  stove  may  be  so  located 
and  used  as  to  make  it  a  nuisance  to  the  adjacent  proprietor,  as  in 
Grady  v.  Wolson,  46  Ala.  381.  The  owner  may  erect  buildings  with 
chimneys  and  build  fires  therein  in  a  proper  manner,  because  these 
are  among  the  necessary  incidents  to  such  property,  but  he  has  no 
right  to  burn  fuel  in  the  making  of  such  fires  that  develops  dense 
masses  of  smoke  to  the  injury  of  his  neighbor,  nor  to  build  his  chim- 
neys so  as  to  send  the  smoke  into  his  neighbor's  house.  "Wood  on 
Nuisances,  sec.  432. 

It  is  further  said  that  the  place  in  question  was  a  manufacturing 
locality,  and  that  the  plaintiff's  annoyances  and  damage  were  only 
such  as  were  incident  to  the  neighborhood  where  he  had  elected  to 
reside. 

In  determining  whether  the  defendants  violated  any  just  rights 
of  the  plaintiff,  the  location  and  surroundings  are  to  be  considered, 
for  it  is  undoubtedly  true  that  what  constitutes  a  nuisance  in  one 
locality  may  not  be  in  another,  and  we  can  fully  accept  the  rule  laid 
down  in  McCaffrey's  Appeal,  105  Penn.  St.  253:  "A  person  who 
resides  in  the  centre  of  a  large  city  must  not  expect  to  be  surrounded 
by  the  stillness  which  prevails  in  a  rural  district.  He  must  neces- 
sarily hear  some  of  the  noise  and  occasionally  feel  slight  vi]:)rations 
produced  by  the  movement  and  labor  of  its  people  and  by  the  hum 
of  its  mechanical  industries." 

And  if  we  should  adopt  the  distinction  laid  down  by  Lord  Chan- 


CHAP.  II.]  HURLBUT   V.    McKONE.  589 

cellor  Westbury  in  St.  Helen'' s  Smelting  Co.  v.  Tipping,  11  H.  L. 
Cases,  650,  cited  by  the  defendants,  between  a  nuisance  producing 
a  material  injury  to  property,  where  the  right  of  action  is  absolute, 
and  an  alleged  nuisance  which  produces  merely  personal  amioyance 
and  discomfort,  where  the  right  of  action  depends  "greatly  on  the 
circumstances  of  the  place  where  the  thing  complained  of  occurs," 
we  still  think  there  is  no  authority  that  would  deny  a  right  of  action 
under  the  facts  and  circumstances  of  this  case  as  described  in  the 
finding.  The  vivid  language  of  Thompson,  J.,  in  delivering  the  opin- 
ion in  Dennis  v.  Eckhardt,  3  Grant,  302,  with  slight  changes  would 
seem  to  describe  this  case:  "Some  discomforts  must  be  endured  as 
compensation  for  the  conveniences  of  city  life  .  .  .  but  I  cannot 
find  authority  m  law  for  saying  that  a  thing  which  fills  the  atmos- 
phere that  others  have  a  right  to  live  in  with  offensive  smoke  and 
odors,  stifles  the  breath,  produces  nausea  and  headache,  .  .  .  pre- 
vents the  drying  of  clothes  and  ventilation  of  houses,  darkens-  the 
sunlight,  and  converts  pleasant  residences  into  prison-houses  in 
dog-days,  and  defiles  carpets,  curtains  and  diimer  plates  with  de- 
posits of  soot  and  dirt,  is  not  a  nuisance,  even  though  the  results 
are  only  occasional." 

The  claim  of  the  defendants,  that  the  locality  is  one  "given  over 
to  mechanical  industries,"  is  not  in  full  accord  with  the  finding. 
The  plaintiff's  house  is  on  Governor  Street,  and  on  this  street  there 
is  no  claim  that  there  are  any  mianufacturing  establishments.  There 
are  such  on  Sheldon  Street,  and  it  is  found  that  "  within  one  thousand 
or  fifteen  hundred  feet  of  the  defendants'  premises  there  are  a  num- 
ber of  other  manufacturing  establishments,  and  the  neighborhood 
within  the  distance  above  stated  is  largely  occupied  by  mechanics 
and  by  tenement  houses."  All  these  manufacturing  establishments 
are  of  course  still  more  remote  from  the  plaintiff's  house,  and  the 
distance  ob\'iously  is  so  great  as  to  preclude  any  aimovance  from 
smoke,  cinders  or  the  jar  of  machinery,  and  the  noise  must  be  so 
softened  that  it  could  not  well  be  a  nuisance.  All  the  discomfort 
which  the  plaintiff  can  suffer,  therefore,  of  the  kind  referred  to,  must 
come  from  the  establishment  of  the  defendants,  only  twenty-one 
feet  distant  from  his  house.  It  is  probably  in  the  power  of  the  de- 
fendants, without  great  expense,  to  avoid  all  just  ground  for  com- 
plaint. The  court  finds  they  have  already  done  so,  mostly  in  respect 
to  smoke  and  cinders. 

In  regard  to  the  suggestion  that  the  plaintiff  elected  to  reside  in 
this  locality,  there  is  nothing  to  show  that  the  objectionable  business 
of  the  defendants  had  ever  been  carried  on  before  the  plaintiff  took 
possession,  but  rather  the  contrary,  for  they  did  not  build  till  1884. 
If,  however,  it  were  otherwise,  and  the  plaintiff  knew  of  the  nuisance, 
and  then  went  and  took  up  his  abode  near  it,  he  would  not  thereby 
be  precluded  from  maintaining  his  action.  A  man  is  not  to  be  pre- 


590  HURLBUT   V.    McKONE.  [CHAP.  II. 

eluded  from  building  and  living  on  his  own  land  because  the  adjoin- 
ing proprietor  first  erected  a  nuisance,  which  indeed  was  no  nuisance 
till  somebody  went  there  to  live.  Hale  v.  Barlow,  27  L.  Jour.,  C.  P., 
208;  Commonwealth  v.  Upton,  6  Gray,  473;  Fertilizing  Co.  v.  Hyde 
Park,  97  U.  S,  R.  659.  In  regard  to  any  suggestion  arising  from  the 
fact  that  the  dwelling  houses  in  the  vicinity  are  largely  occupied 
by  mechanics  and  tenants,  we  fully  approve  and  adopt  the  language 
of  Chancellor  Zabriskie  in  delivering  the  opinion  in  Ross  v.  Butler, 
19  N.  Jersey  Eq.  294:  "I  find  no  authority  that  will  warrant  the 
position  that  the  part  of  a  town  which  is  occupied  by  tradesmen  and 
mechanics  for  residences  and  carrying  on  trades  and  business,  and 
which  contains  no  elegant  or  costly  dwellings,  and  is  not  inhabited 
by  the  wealthy  and  luxurious,  is  a  proper  or  convenient  place  for 
carrying  on  business  which  renders  the  dwellings  there  uncomfort- 
able to  the  owners  and  their  families,  by  offensive  smells,  smoke, 
cinders  or  intolerable  noises,  even  if  the  inhabitants  themselves  work 
at  trades  occasioning  some  degree  of  noise,  smoke  and  cinders. 
There  is  no  principle  in  law  or  reason  which  would  give  protection 
to  the  large  comforts  and  enjoyments  with  which  the  wealthy  and 
luxurious  are  surrounded,  and  fail  to  secure  to  the  artisan  and  laborer 
and  their  families  the  fewer  and  more  restricted  comforts  which  they 
enjoy." 

Note.  —  In  St.  Helen's  Smelting  Company  v.  Tipping,  11  H.  L. 
Cas.  642,  the  plaintiff  complained  that  the  defendant  "caused  large 
quantities  of  noxious  gases,  vapours,  and  other  noxious  matter,  to 
issue  from  the  said  works,  and  diffuse  themselves  over  the  land  and 
premises  of  the  plaintiff."  The  court  approved  the  action  of  the 
trial  justice  in  instructing  the  jury  that  "an  actionable  injury  was 
one  producing  sensible  discomfort;  that  every  man,  unless  enjoying 
rights  obtained  by  prescription  or  agreement,  was  bound  to  use  his 
own  propert}^  in  such  a  manner  as  not  to  injure  the  property  of  his 
neighbours;  that  there  was  no  prescriptive  right  in  this  case;  that 
the  law  did  not  regard  trifling  inconveniences;  that  everything  must 
be  looked  at  from  a  reasonable  point  of  view;  and  therefore,  in  an 
action  for  nuisance  to  property,  arising  from  noxious  vapours,  the 
injury  to  be  actionable  •  must  be  such  as  visibly  to  diminish  the 
value  of  the  property  and  the  comfort  and  enjojonent  of  it.  That  when 
the  jurors  came  to  consider  the  facts,  all  the  circumstances,  includ- 
ing those  of  time  and  locality,  ought  to  be  taken  into  consideration; 
and  that  with  respect  to  the  latter  it  was  clear  that  in  counties  where 
great  works  had  been  erected  and  carried  on,  persons  must  not  stand 
on  their  extreme  rights  and  bring  actions  in  respect  of  every  matter 
of  annoyance,  for  if  so,  the  business  of  the  whole  country  would  be 
seriously  interfered  with." 


CHAP.  Ill.f  TYLER    V.    MASON.  591 


CHAPTER   III. 
WATER. 


TYLER  V.   MASON. 

4  Mason  (U.S.  C.  C.)  397.     1827. 

Story,  J.  Prima  facie  every  proprietor  upon  each  bank  of  a  river 
is  entitled  to  the  land,  covered  with  water,  in  front  of  his  bank,  to 
the  middle  thread  of  the  stream,  or,  as  it  is  commonly  expressed, 
usque  filum  aquce.  In  virtue  of  this  ownership  he  has  a  right  to  the 
use  of  the  water  flowing  over  it  in  its  natural  current,  without  dim- 
inution or  obstruction.  But,  strictly  speaking,  he  has  no  property 
in  the  water  itself;  but  a  simple  use  of  it,  while  it  passes  along.  The 
consequence  of  this  principle  is,  that  no  proprietor  has  a  right  to 
use  the  water  to  the  prejudice  of  another.  It  is  wholly  immaterial, 
whether  the  party  be  a  proprietor  above  or  below,  in  the  course  of 
the  river;  the  right  being  common  to  all  the  proprietors  on  the  river, 
no  one  has  a  right  to  diminish  the  quantity  which  will,  according 
to  the  natural  current,  flow  to  a  proprietor  below,  or  to  throv/  it  back 
upon  a  proprietor  above.  This  is  the  necessary  result  of  the  perfect 
equality  of  right  among  all  the  proprietors  of  that  which  is  common 
to  all.  The  natural  stream,  existing  by  the  bounty  of  Providence 
for  the  benefit  of  the  land  through  which  it  flows,  is  an  incident 
annexed,  by  operation  of  law,  to  the  land  itself.  When  I  speak  of 
this  common  right,  I  do  not  mean  to  be  understood,  as  holding  the 
doctrine,  that  there  can  be  no  diminution  whatsoever,  and  no  ob- 
struction or  impediment  whatsoever,  by  a  riparian  proprietor,  in 
the  use  of  the  water  as  it  flows ;  for  that  would  be  to  deny  any  valu- 
able use  of  it.  There  may  be,  and  there  must  be  allowed  of  that, 
which  is  common  to  all,  a  reasonal^le  use.  The  true  test  of  the  prin- 
ciple and  extent  of  the  use  is,  whether  it  is  to  the  injury  of  the 
other  proprietors  or  not.  There  may  be  a  diminution  in  quantity, 
or  a  retardation  or  acceleration  of  the  natural  current  indispensa- 
ble for  the  general  and  valuable  use  of  the  water,  pci'fcctly  con- 
sistent with  the  existence  of  the  common  right.  The  diminution, 
retardation,  or  acceleration,  not  positively  and  sensibly  injurious  by 
diminishing  the  value  of  the  common  right,  is  an  implied  element 
in  the  right  of  using  the  stream  at  all.  The  law  here,  as  in  many 
other  cases,  acts  with  a  reasonable  reference  to  public  convenience 
and  general  good,  and  is  not  betrayed  into  a  narrow  strictness,  sub- 


592  PENNSYLVANIA    RAILROAD    CO.    V.    MILLER.        (CHAP.  III. 

versive  of  common  sense,  nor  into  an  extravagant  looseness,  which 
would  dostroy  private  rights.  The  maxim  is  applied,  sic  utere  tuo, 
id  non  alienum  Icedas. 


PENNSYLVANIA    RAILROAD  CO.   v.   MILLER. 

112  Pa.  34.     1886. 

Case  brought  by  Frank  P.  Miller  against  the  Pennsylvania  Rail- 
load  Company,  August  24th,  1883,  for  the  recovery  of  damages 
resulting  to  him  by  reason  of  the  insertion  of  a  pipe  in  Brandywine 
Creek,  above  the  plaintiff's  mill,  on  the  land  of  the  defendant,  and 
the  consequent  diminution  of  the  water  supply  at  the  mill  of  the 
plaintiff.  Plea,  not  guilty. 

The  following  facts  appear  on  the  trial  before  Futhet,  P.J.:  — 

The  defendant  in  error  is  the  o^-ner,  as  tenant  for  years,  of  a  paper 
mill  near  Dcwningtown,  Pa.  The  mill  is  run  by  water  power,  and 
is  wholly  supplied  with  water  drawn  from  a  dam  in  the  Brandywine 
Creek.  The  breast  of  the  dam  is  erected  on  the  lands  of  the  defend- 
ant in  error.  The  back  or  still  water  of  the  dam  extends  up  the  bed 
of  the  Brandywine  Creek  several  hundred  yards  above  and  beyond 
the  point  where  the  railroad  of  the  plaintiff  in  error  crosses  said 
creek  on  a  bridge  over  the  same.  The  right  to  maintain  said  dam, 
and  back  the  water  above  and  across  the  line  of  the  railroad,  was 
conveyed  to  defendant's  predecessors  in  title  in  the  year  1798,  and 
has  belonged  to  them  ever  since  that  date,  and  has  been  maintained 
as  it  now  exists  for  over  half  a  century. 

The  plaintiff  in  error  is  the  owner  by  purchase  from  the  Common- 
wealth of  Pennsylvania  of  a  railroad  running  from  Harrisburg  to 
Philadelphia,  which  crosses  the  Brandywine  Creek,  where  the  same 
stands  as  still  water  in  the  defendant's  dam,  several  hundred  yards 
below  the  head  of  the  same.  At  this  point  of  crossing  the  railroad 
is  conducted  over  the  dam  upon  a  bridge.  The  bed  of  the  stream 
beneath  said  bridge  was  not  at  any  time  physically  occupied  by  the 
railroad  of  the  State,  and  has  not  been  since  it  was  purchased  by 
the  plaintiff  in  error. 

For  some  years  prior  to  1881,  the  plaintiff  in  error  was  supplied 
with  water  for  the  uses  of  their  road  by  the  Do\Miingto\Mi  Gas  and 
Water  Company,  from  a  point  about  a  mile  west  of  the  Brandjnvine 
Creek.  In  the  summer  of  1881,  the  plaintiff  in  error,  being  unable 
to  agree  with  the  Water  Copipany  for  the  price  to  be  paid  for  this 
supply  of  water,  which  had  previously  been  at  the  rate  of  S2,000 
per  year,  erected  an  engine  on  the  banks  of  the  dam  of  the  defendant 
in  error,  for  the  purpose  of  supplying  themselves  with  water  to  be 
pumped  therefrom.    The  defendant  protested  but  to  no  avail.    A 


CHAP.  III.]        PENNSYLVANIA    RAILROAD    CO.    V.    MILLER.  £93 

six-inch  iron  pipe  was  inserted  in  his  dam,  two  or  three  feet  below 
the  surface  thereof,  and  large  quantities  of  water  have  been  since 
constantly  pumped  therefrom  by  day  and  night,  and  conveyed  in 
pipes  to  the  tanks  of  the  plaintiff  in  error,  a  mile  distant.  By  this 
act,  the  defendant's  water  supply  was  materially  diminished,  and 
he  subjected  to  considerable  loss,  for  which  this  suit  was  brought. 

After  the  case  of  the  plaintiff  in  the  court  below  was  in,  the  defend- 
ant, to  show  a  right  to  take  the  water  without  liability  to  this  suit, 
offered  in  evidence  the  deed  from  the  Commonwealth  for  the  main 
line  of  the  public  works.  Neither  the  charter  of  the  plaintiff  in  error, 
nor  the  supplemental  Acts  of  Assembly,  conferring  special  privileges 
upon  it,  were  offered  as  proofs  or  specially  pleaded. 

No  compensation  was  ever  made  the  defendant  in  error,  nor  was 
security  given  before  or  since  the  water  was  taken. 

Mr.  Justice  Paxson  delivered  the  opinion  of  the  court  April  19th, 
1886. 

This  was  an  action  brought  in  the  court  below  against  the  Penn- 
sylvania Railroad  Company  for  diverting  the  water  from  the  Brandy- 
wine  Creek,  to  the  injury  of  the  defendant  in  error,  who  is  the  owner 
of  a  mill  property  on  that  stream  below  the  railroad.  The  water  is 
taken  within  the  line  of  the  road  and  upon  the  property  of  the  com- 
pany. The  land  covered  by  the  water  at  this  point  belongs  to  the 
company  in  fee  simple.  The  water  is  pumped  up  from  the  creek 
into  large  tanks  and  is  then  used  to  supply  the  locomotives  of  the 
company.  The  plaintiff  alleges  that  the  quantity  taken  was  so  large 
as  to  seriously  impair  the  power  of  his  mill,  and  hence  this  suit. 

It  was  contended  upon  the  trial  below,  and  it  was  urged  here  that 
the  proceeding  should  have  been  by  a  jury  of  view  under  the  Act 
of  May  16th,  1857,  and  not  by  a  common  law  action.  We  do  not 
regard  this  point  as  tenable,  for  the  reason  that  the  water  was  not 
taken  by  the  company  under  the  right  of  eminent  domain,  but  by 
virtue  of  its  rights  as  a  riparian  owner.  As  before  stated,  it  owtis  the 
land  in  fee  simple  at  the  point  where  the  water  is  taken,  and  has 
precisely  the  right  of  every  other  riparian  owner  on  that  stream. 
It  may  use  the  water  as  other  owTiers  use  it  without  responsibility 
to  any  one  therefor,  provided  such  use  is  not  of  a  character  to  injure 
other  riparian  owners  on  the  same  stream. 

The  principle  established  by  a  long  line  of  decisions  is  that  the 
upper  riparian  owner  has  the  right  to  the  use  of  the  stream  on  his 
land  for  any  legal  purpose,  provided  he  returns  it  to  its  channel 
uncorrupted  and  without  any  essential  diminution;  that  in  all  such 
cases  the  size  and  capacity  of  the  stream  is  to  be  considered,  and 
that  any  interruption  of  or  interference  with  the  rights  of  the  lower 
riparian  o^vner  is  an  injury  for  which  an  action  will  lie,  unless  too 
trifling  for  the  law  to  notice:  WheatJy  v.  Chrisman,  24  Penn.  St. 
Rep.  298.    The  size  and  capacity  of  the  stream  has  always  an 


594  HIGGINS    V.    FLEmNGTON    WATER    CO.  [CHAP.  III. 

important  bearing  upon  questions  of  this  nature.  Every  riparian 
owner  has  the  right  to  use  the  water  of  the  stream  passing  over  his 
land  for  ordinary  domestic  purposes,  and  if  the  stream  be  so  small 
that  his  cattle  drink  it  all  up,  while  it  may  be  a  loss  to  the  lower  ri- 
parian owner,  it  is  damnum  absque  injuria.  But  where  the  upper 
riparian  owner  diverts  or  uses  the  water,  not  for  ordinary  domestic 
purposes,  such  as  are  inseparable  to  and  necessary  for  the  use  of  his 
land,  but  for  manufacturing  or  other  purposes,  having  no  necessary 
relation  to  his  use  of  his  land,  the  case  is  different.  In  Wheatly  v. 
Chrisman,  supra,  it  was  held  that  "a  proprietor  of  land  over  which 
a  stream  of  water  runs  has,  as  against  a  lower  proprietor,  the  use 
only  of  so  much  of  the  stream  as  will  not  materially  diminish  its 
quantity.  His  right  is  not  to  be  measured  by  the  reasonable  de- 
mands of  his  business."  In  that  case  the  allegation  was  that  the 
stream  had  been  diverted  by  one  riparian  owner  in  order  to  work 
his  lead  mine  to  such  an  extent  as  to  sensibly  diminish  the  supply 
to  the  lower  owner;  and  that  such  use  was  necessary  in  order  to  en- 
able him  to  carry  on  his  business.  It  was  said  by  this  court:  "The 
proposition  of  the  defendant  was  that  he  had  a  legal  right  to  use  a 
reasonable  quantity  of  the  water  for  the  purposes  of  his  business. 
The  court  below  replied  that  his  business  might  reasonably  require 
more  than  he  could  take  consistently  with  the  rights  of  the  plain- 
tiff. We  cannot  see  how  or  on  what  principle  the  correctness  of  this 
can  be  impugned.  The  necessities  of  one  man's  business  cannot  be 
the  standard  of  another's  rights  in  a  thing  which  belongs  to  both.  .  .  . 
The  defendant  had  a  right  to  such  use  as  he  could  make  of  the  water 
without  materially  diminishing  it  in  quantity.  ...  If  he  needed 
more  he  was  bound  to  buy  it.  However  laudable  his  enterprise 
may  be,  he  cannot  carrj^  it  on  at  the  expense  of  his  neighbor.  One 
who  desires  to  work  a  lead  mine  may  require  land  and  money  as 
well  as  water,  but  he  cannot  have  either  unless  he  first  makes  it  his 
own." 

This  is  conclusive  of  the  present  controversy.  As  before  observed, 
the  railroad  company  may  use  this  water  by  \4rtue  of  its  rights  as 
riparian  owner;  but  such  use  must  be  such  as  not  to  sensibly  dimin- 
ish the  stream  to  the  riparian  owner  below.  The  water  belongs  to 
both,  and  if  the  former  wants  more  than  its  share  it  must  take  it 
under  its  right  of  eminent  domain  and  pay  for  it. 

Judgment  affirmed. 


HIGGINS  V.   FLEMINGTON  WATER  CO. 

36  N.  J.  Eq.  538.     1883. 

Beasley,  C.J.    The  complainants,  who  are  the  appellants  here, 
nled  their  bill  to  enjoin  the  defendant  from  diverting  part  of  the 


CHAP.  III.]  HIGGINS    V.    FLEMINGTON    WATER    CO.  595 

water  of  an  ancient  water-course  from  their  mill.   The  facts  which 
must  be  taken  as  established  are  these:  The  complainants'  property 
is  situated  on  the  South  Branch  of  the  Raritan  River,  which  is  a 
stream  of  considerable  volume  except  in  times  of  tlrouth;  the  defend- 
ant is  a  corporate  body,  constituted  for  the  purpose  of  supplj'ing 
the  village  of  Flemington  with  water,  and  to  that  end,  finding  its 
supply  of  water  from  other  sources  insufficient,  contracted  with  the 
owners  of  a  mill  on  the  stream  in  question,  to  pump  from  such  stream, 
at  a  point  above  the  premises  of  the  complainants,  and  to  force 
through  pipes  into  its  reservoir,  such  a  quantity  of  water  as  would 
form  the  complement  of  its  resources.   This  supplementary  supply 
was  necessary  only  in  times  of  scarcity  of  water,  and  at  such  times, 
the  natural  stream,  if  left  undiminished,  was  insufficient  for  the 
purposes  of  the  complainants;  and  the  quantum  which  would  be 
thus  abstracted  by  the  defendant,  though  not  very  great,  would  be 
of  such  magnitude  as  to  work  a  sensible  and  essential  detriment  to 
the  complainants,  and  would  therefore  be  of  a  character  that  its  ab- 
straction cannot  be  disregarded  by  force  of  the  maxim  de  minimis,  &c. 
On  the  part  of  the  defence  the  application  for  the  injunction  on 
final  hearing  was  resisted  on  two  grounds:  the  first  of  these  being 
the  contention  that  as  the  mill-OTVTiers,  with  whom  the  defendant 
had  contracted  for  the  additional  supply  of  water,  were  riparian 
proprietors,  it  was  clothed  with  the  rights  appertaining  to  such 
ownership,  one  of  such  rights  being  the  legal  authority  to  take  water 
from  the  stream  for  the  uses  to  which  it  was  applied.    The  exact 
assumption  of  this  proposition  is  this,  that  a  riparian  proprietor 
can  lawfully  not  only  use  the  water  as  it  passes  over  his  property  for 
his  own  domestic,  agricultural  or  similar  pui-poses,  but  that,  al- 
though such  an  appropriation  works  a  palpable  damage  to  a  riparian 
owner  further  down  the  stream,  he  can  sell  out  the  use  of  such  water 
to  strangers,  and  that  it  may  be  diverted  to  lands  not  riparian  for 
the  purposes  of  such  alienation.  But  I  have,  in  my  researches,  alto- 
gether failed  to  find  either  any  authority  or  any  legal  principle 
which  will  sustain  this  position.   The  definitions  of  Chancellor  Kent 
in  his  Commentaries,  of  the  legal  title  of  riparian  proprietors,  have 
been  frequently  quoted  with  approbation  by  the  courts  of  England 
and  of  this  country,  and  yet,  as  long  ago  as  the  year  1816,  this  great 
lawyer  decided,  in  a  case  that  I  believe  has  never  in  any  wise  been 
questioned,  that  the  legal  power  to  make  such  a  diversion  of  the 
water  as  is  here  claimed  did  not  exist.     The  case  referred  to  is  that 
of  Gardner  v.  Trustees  of  the  Village  of  Newburgh,  2  Johns.  Ch.  162. 
The  facts  were  these :  the  complainant's  farm  was  crossed  by  a  stream 
which  came  from  a  spring  arising  in  an  adjacent  farm,  and  the  de- 
fendants, who  had  been  authorized  to  supply  the  village  of  New- 
burgh with  water,  had  obtained  leave  of  the  owner  of  such  spring  to 
use  and  divert  the  water  or  a  part  of  it,  for  the  purpose  mentioned. 


596  HIGGINS   V.   FLEMINGTON   WATER   CO.  [cH.'>lP.  III. 

If  the  owner  of  this  spring  had  possessed  the  right  to  transfer  to  a 
water  company  the  privilege  of  using  the  water  of  the  stream  for 
domestic  purposes,  to  the  deprivation  of  other  o^vners  of  land  upon 
the  water-course,  the  complainant  in  the  Newburgh  case  would  have 
been  in  court  destitute  of  all  legal  or  equitable  standing-ground ;  but 
such  was  not  the  view  taken  by  the  court  of  the  situation,  for  it  was 
held  that  the  defendants,  by  force  of  these  contracts  with  the  owTier 
of  the  spring,  gained  no  right  to  make  the  diversion  complained  of, 
and  that  the  complainant's  claim  to  equitable  protection  was  so 
clear  that  he  was  entitled  even  to  a  preliminary  injunction.  This 
decision  was  cited  as  authority  in  this  State  in  Van  Winkle  v.  Curtis, 
2  Gr.  Ch.  427. 

And  it  appears  to  me  that  viewed  in  the  light  of  all  the  legal  deci- 
sions which  upon  this  subject  have  been  since  made,  this  case  is  to 
be  considered  as  having  been  correctly  adjudged.  The  general  prin- 
ciples of  law  which  define  the  rights  in  these  natural  streams,  arising 
from  riparian  proprietorship,  have  become  now  firmly  established 
by  a  long  line  of  adjudications.  Thus  it  is  settled  that  the  right  to 
flowing  water  is  an  incident  to  the  proprietorship  of  the  lands  along 
or  over  which  such  stream  flows ;  that  such  right  is  conmaon  among 
all  such  proprietors,  and  that  each  of  them  is  entitled  to  its  reason- 
able use,  and  that  so  long  as  such  use  be  reasonable  a  co-proprietor 
cannot  complain  of  the  consequences  of  such  appropriation.  Thus, 
beyond  all  question,  a  riparian  proprietor  may  use  the  passing  water, 
in  a  reasonable  manner,  for  domestic  uses,  or  for  the  irrigation  of 
his  lands,  or  doubtless  for  other  purposes,  under  the  same  restric- 
tion. The  cases  cited  in  the  learned  brief  of  the  counsel  of  defendant 
illustrate  and  exemplify  this  doctrine.  Thus,  in  the  important  case 
of  Emhrey  v.  Owen,  6  Exch.  353,  it  was  declared  that,  in  a  suit  for 
the  diversion  of  part  of  the  water  of  a  stream,  it  was  properly  left 
to  the  jury  to  settle  the  case  on  the  point  whether  or  not  they  found 
there  had  been  a  sensible  diminution  of  the  water  by  reason  of  the 
diversion.  The  diversion  had  been  made  by  a  riparian  proprietor 
for  the  purpose  of  irrigation,  and  it  was  therefore  plain,  according 
to  the  law  as  just  stated,  that  an  abstraction  from  the  stream  for 
such  a  purpose,  which  produced  no  sensible  diminution  of  the  stream, 
could  not  be  said  to  be  an  unreasonable  use  of  the  water.  The  case 
of  Elliot  V.  Fitchhurg  Railroad  Co.,  10  Gush.  191,  is  founded  on  simi- 
lar principles.  This  was  the  case  of  a  railroad  company,  which,  by 
an  arrangement  with  a  riparian  proprietor,  had  diverted  a  small 
quantity  of  water  from  a  stream  for  the  purpose  of  furnishing  their 
steam  engines  with  water,  and  the  court,  on  re^^ew  of  the  rulings  of 
the  judge  at  the  trial,  maintained  that  an  instruction  to  the  jury  to 
the  effect  that  "unless  the  plaintiff  suffered  actual,  perceptible  dam- 
age in  consequence  of  the  diversion,  the  defendants  were  not  liable" 
in  the  action,  was  correct.   The  reason  of  these  decisions  is  stated 


CHAP.  III.]  PITTS   V.    LANCASTER   MILLS.  697 

in  the  former  of  these  two  cases  just  cited:  "so  long,"  says  the  court, 
"as  this  reasonable  use  by  one  man  of  this  common  property  does 
no  actual  and  perceptible  damage  to  the  right  of  another  to  the  simi- 
lar use  of  it,  no  action  will  lie." 

These  cases,  as  well  as  the  others  to  the  sanie  effect  contained  in 
the  brief  of  counsel,  were,  beyond  all  doubt,  correctly  decided;  and 
they  are  all  of  them  obviously  hostile  to  the  pretensions  of  the  de- 
fence in  the  present  case;  for  it  has  been  already  stated  that  in  the 
present  instance  the  diversion  which  is  here  threatened  will  work 
an  actual  and  perceptible  damage  to  the  complainant,  and  these 
authorities,  as  we  have  seen,  explicitly  held  that  for  such  a  diversion 
an,  action  is  maintainable.  The  instruction  to  the  jury  in  each  of 
these  rejected  cases  just  considered  was  to  the  effect  that  the  plain- 
tiff must  succeed,  if  it  appeared  from  the  evidence  that  the  diver- 
sions of  the  water  had,  according  to  the  instruction  to  the  jury  in 
one  case,  occasioned  a  sensible  diminution  of  the  water,  or  as  it  was 
expressed  by  the  trial  judge  in  the  other,  had  produced  "an  actual 
and  perceptible  damage"  to  the  plaintiff.  By  the  test  of  the  rule 
thus  applied  there  can  be  no  question  with  respect  to  the  present 
complainant's  right  to  a  legal  remedy  for  the  diversion  of  the  water 
by  the  respondent.  In  estimating  the  extent  of  the  wrong  done  the 
complainant,  it  is  also  to  be  remembered  that  the  damage  is  of  a 
kind  to  increase  as  time  passes,  for  as  the  population  of  the  village 
enlarges,  the  supply  of  water  must  be  proportionately  extended; 
and  that  this  diversion  is  made  under  a  claim  of  right,  which,  if 
continued,  will,  after  the  lapse  of  the  requisite  period  of  tim.e,  grow 
into  a  legal  right.  It  seems  to  me  that  it  is  entirely  clear  that  the 
complainant  has  sustained  a  wrong  by  this  act  of  the  defendant, 
which  entitles  him  to  legal  redress. 


PITTS   V.  LANCASTER  MILLS. 

13  Met.  (Mass.)  156.     1847. 

This  was  an  action  of  trespass  upon  the  case ;  and  the  declaration 
alleged  that  Samuel  Carter  was  seized  and  possessed  of  a  close,  water 
mill,  ancient  dam,  and  the  water  privileges  thereto  appertaining, 
situate  on  the  north  branch  of  Nashua  River,  in  Lancaster,  and  the 
right  of  having  the  whole  water  of  said  stream  flow,  without  obstruc- 
tion, for  the  benefit  of  said  mill,  and  of  having  the  uninterrupted  use 
and  occupation  of  said  mill  and  privileges;  and  that  said  Carter, 
being  so  seized  and  possessed,  leased  the  said  premises,  for  a  term 
of  years,  to  Hiram  Pitts,  who  underlet  the  same  to  the  plaintiffs; 
that  the  defendants,  a  corporation  established  by  St.  1844,  c.  20, 
in  the  months  of  June  and  July,  1845,  wrongfully  built  and  raised, 


598  PEOPLE    V.    ELK    RIVER    CO.  [CHAP    III, 

above  its  usual  height,  their  dam,  situate  across  said  stream,  above 
the  mill,  dam  and  privilege  occupied  by  the  plaintiffs,  and  thereby 
hindered  the  water  from  flowing  in  its  usual  course,  and  therebj^, 
lor  the  space  of  two  days  during  the  said  month  of  June,  and  four 
days  during  said  month  of  July,  wholly  cut  off  the  water  from  the 
plaintiffs'  mill,  etc. 

The  case  was  submitted  to  the  court  upon  the  following  agreed 
statement  of  facts:  "The  plaintiffs  are  the  lessees  of  said  mill,  dam 
and  privileges,  as  alleged  in  their  declaration.  The  defendants  were 
the  oumers  of  a  privilege  on  said  stream,  above  the  mill  of  the  plain- 
tiffs, whereon  a  mill  had  stood  for  some  years;  they  erected  a  new 
mill  thereon,  and,  for  the  purpose  of  using  the  whole  power,  raised 
the  dam  higher  than  it  had  formerly  been,  and  kept  the  water  back, 
so  long  as  was  necessary  to  fill  their  pond,  and  no  longer.  To  have 
delayed  filling  said  pond,  until  a  freshet  or  flow  of  water  should  have 
raised  the  same,  would  have  endangered  said  dam;  and  by  keeping 
the  water  back,  as  aforesaid,  the  operations  of  the  plaintiffs'  mill 
were  retarded  or  wholly  suspended." 

The  parties  agreed  that  if,  upon  the  facts  above  stated,  the  action 
could  be  maintained,  damages  should  be  assessed  by  an  auditor; 
otherwise,  that  a  nonsuit  should  be  entered. 

Shaw,  C.J.  Every  proprietor  of  land,  through  which  a  current 
of  water  flows,  has  a  right  to  the  use  of  it  on  his  own  land,  amongst 
other  things  for  mill  purposes,  making  such  reasonable  use  of  it,  and 
of  the  mill  power  furnished  by  it,  as  he  can  make  consistently  with 
a  like  reasonable  use  by  other  proprietors,  above  and  below,  through 
whose  land  it  passes.  What  is  a  reasonable  use  must  depend  on 
circumstances;  such  as  the  width  and  depth  of  the  bed,  the  volume 
of  water,  the  fall,  previous  usage,  and  the  state  of  improvement  in 
manufactories  and  the  useful  arts.  8  Met.  476. 

It  appears  by  the  facts  stated  in  this  case,  that  the  defendants 
were  proprietors  of  land  and  mills  above  those  of  the  plaintiffs  on 
the  same  stream;  that  having  erected  a  new  dam,  which  they  had  a 
right  to  do,  they  detained  the  water  no  longer  than  was  necessary 
to  raise  their  o^m  head  of  water  and  fill  their  o\\ti  pond.  The  court 
are  of  opinion  that  this  was  not  an  unreasonable  use  of  the  water- 
course by  the  defendants,  and  that  any  loss,  which  the  plaintiffs 
temporarily  sustained  by  it,  was  damnum  absque  injuria. 

Plaintiffs  nonsuit 


PEOPLE  V.   ELK  RIVER  CO. 

107  Cal.  214.     1895. 

Temple,  J.   This  appeal  is  by  the  defendant  from  the  judgment 
upon  the  judgment-roll. 


CHAP,  m.]  PEOPLE    V.    ELK   RIVER   CO.  599 

The  action  was  brought  on  relation  of  the  Ricks  Water  Company 
to  abate  certain  structures  as  nuisances.  Among  other  things  it  was 
charged  that  the  defendant  had  constructed  and  was  maintaining 
on  the  banks  of  the  south  fork  of  Elk  River  "a,  large  sawmill,  and 
also  a  cookhouse,  outhouses,  barn,  and  stables,  and  other  fixtures 
which  usually  accompany  a  sawmill." 

It  was  averred  "that  said  defendant  has  caused  and  permitted, 
and  does  cause  and  permit,  all  sewage,  offal,  waste,  and  fetid  matter 
from  said  sawmill,  cookhouse,  and  stables  to  be  drained  and  deposited 
in  the  waters  of  said  stream,  and  continues  to  do  so,  thereby  con- 
taminating, polluting,  and  rendering  the  same  unwholesome  and 
unfit  for  culinary  and  other  generally  domestic  purposes,  and  offen- 
sive to  the  senses." 

As  to  most  of  the  structures  mentioned,  the  court  found  that  they 
did  not  constitute  nuisances,  but  it  was  found  as  follows:  "That  on 
the  banks  of  said  stream,  just  above  the  milldam,  defendant  had 
erected  a  large  stable  in  which  it  houses  from  twenty-five  to  thirty 
head  of  cows.  That  the  droppings  from  these  cattle  are  deposited 
upon  the  banks  of  said  stream,  and  near  thereto,  where  the  land 
gradually  slopes  to  the  same. 

"That  there  now  exists  at  said  point  a  pile  of  manure  about 
seventy  feet  in  length,  eight  feet  deep,  and  sixteen  to  eighteen  feet 
in  width,  and  which  has  been  accumulating  there  for  years.  That 
the  defendant  allows  and  permits  this  large  pile  of  manure  to  lie 
there  and  rot  on  the  bank  of  said  stream,  and  the  drainage  therefrom 
flows  directly  into  the  waters  of  said  stream  and  pollutes  the  same, 
and  renders  the  waters  thereof  offensive  to  the  senses,  and  unwhole- 
some and  unfit  for  domestic  uses.  That  defendant  also  maintains 
near  said  stream  a  corral  or  pen  in  which  it  keeps  about  twenty-five 
hogs.  That  the  said  stream  forms  one  side  of  said  pen,  and  the  urine 
and  droppings  and  filth  from  said  hogs  find  their  way  into  said  stream, 
thereby  polluting  the  waters  thereof,  and  rendering  the  same  offen- 
sive to  the  senses,  and  unwholesome  and  unfit  for  domestic  uses." 

And  as  matter  of  law  it  was  found  that  the  hogpen  and  manure- 
pile  constitute  nuisances,  and  defendant  was  enjoined  from  main- 
taining them. 

From  this  part  of  the  decree  defendant  appeals,  and  his  first  point 
is  that  this  finding  is  not  within  the  issues. 

The  hogpen  and  manure-pile  are  not  mentioned  in  the  complaint, 
and  it  is  not  found  that  they  are  such  fixtures  as  usually  accompany 
a  sawmill.  The  complaint,  however,  speaks  of  outhouses  and  stables, 
and  I  think  the  findings  sufficiently  show  that  the  cow-stable  and 
hog]oen  are  maintained  in  connection  with  the  mill  plant;  and,  not- 
withstanding appellant's  criticism,  that  the  manure-pile  is  caused 
by  the  cow-stable.  Beyond  this  the  complaint  seems  to  be  that  the 
court  did  not  suppress  the  stable  itself  rather  than  the  use  of  itp 


600  PEOPLE    V.    ELK    RIVER    CO.  [cHAP.  III. 

which  renders  it  a  nuisance.   I  do  not  think  there  was  any  error 
here  of  which  the  defendant  can  complain. 

The  court  found  that  Elk  River  is  not  a  navigable  stream.  It  is 
contended  that  it  follows  from  that  fact  that  fouling  its  waters 
cannot  constitute  a  public  nuisance.  But  it  is  found  that  "  the  waters 
of  Elk  River  at  and  below  the  defendant's  dam  were,  and  have  been, 
and  now  are,  used  by  a  considerable  number  of  persons,  who  reside 
along  the  banks  of  said  stream  below  the  defendant's  mill  and  dam." 
This  constitutes  such  a  public  use  as  would  make  a  pollution  of  the 
water  by  any  unreasonable  use  a  public  nuisance. 

We  may  leave  out  of  view,  therefore,  the  claims  of  the  Ricks 
Water  Company  and  the  inhabitants  of  the  city  of  Eureka  altogether. 
While,  as  to  lower  riparian  owners,  the  defendant  is  entitled  to  a 
reasonable  use  of  the  water,  he  has  no  right  to  pollute  the  stream 
by  putting  such  matter  directly  into  it. 

The  decision  does  not  go  to  the  extent  that  appellant  apprehends. 
It  does  not  determine  that  one  may  not  depasture  stock  upon  the 
lands  comprising  the  watershed  drained  by  the  river,  because  they 
would  necessarily  pollute  the  water,  nor  that  he  cannot  maintain 
stables  and  hogpens  upon  the  land,  but  only  that  they  must  not 
be  in,  or  directly  upon,  the  banks  of  the  stream.  It  holds  that  this  is 
an  unreasonable  use  of  such  streams  by  a  riparian  owner  as  against 
lower  riparian  owners.  But  if  stock,  not  confined  upon  the  river- 
banks,  following  their  natural  instincts  cause  such  pollution  it  would 
be  a  different  matter.  So,  if  the  hogpen  and  the  cow-stable  were  at 
a  reasonable  distance  from  the  river,  the  fact  that  the  winter  rains 
washed  some  impurities  into  the  stream  would  be  something  of 
which  lower  riparian  proprietors  could  not  complain.  The  acts  en- 
joined are  equivalent  to  actually  putting  the  polluting  material 
directly  into  the  water.  If  the  confonnation  of  defendant's  land  is 
such  that  he  cannot  carry  on  a  dairy  without  putting  such  filth 
directly  into  the  water,  then  he  must  find  some  other  use  for  the 
land.  This  seems  to  be  the  effect  of  the  rule  laid  down  in  People  v. 
Gold  Run,  66  Cal.  138;  56  Am.  Rep.  80. 

The  judgment  is  affinned. 

Note.  —  Young  v.  Bankier  Distillery  Co.,  [1893]  A.  C.  691.  The 
appellant  pumped  water,  pure  but  hard  in  quality,  into  a  burn,  the 
water  of  which  was  soft  in  quality.  This  made  the  water  of  the  bum 
hard.  The  hard  water  was  much  less  suitable  for  distilling  than  the 
naturally  soft  water  of  the  bum.  The  respondent,  a  low^er  riparian 
proprietor,  accustomed  to  use  the  water  for  distilling  pui-poses,  was 
held  entitled  to  prevent  a  continuation  of  such  pumping. 


CHAP.  III.]  SNOW   V.    PAKSONS.  601 

SNOW  V.  PARSONS. 

28  Vt.  459.     1856. 

Action  on  the  case  for  the  obstruction  of  the  plaintiff's  water- 
wheel  by  the  tan-bark  discharged  at  the  defendants'  tannery  on  the 
stream  above,  and  suffered  to  float  down  to  the  plaintiff's  mill.  The 
action  was  referred,  and  the  referee  reported  the  following  facts. 

The  plaintiff  was  the  owner  of  a  saw-mill  in  West  Dover,  upon 
a  branch  of  Deerfield  River,  together  with  a  privilege  of  water  to 
operate  the  same  from  1842  to  1845,  when  he  sold  them,  and  from 
1849,  when  he  re-purchased,  until  the  commencement  of  this  suit. 

In  1844  a  tanneiy  was  erected  upon  the  same  stream,  about  a  mile 
and  three  fourths  above  the  plaintiff's  saw-mill,  and  was  so  situated 
that  the  tan  vats  were  directly  over  the  stream,  and  the  spent  tan 
was  discharged  into  the  stream,  and  carried  by  the  water  dowTi  to 
and  by  the  plaintiff's  saw-mill.  On  the  4th  of  October,  1849,  the 
defendants  purchased  the  said  tannery,  and  have  ever  since  con- 
tinued to  own  and  occupy  it,  using  yearly  a  large  amount  of  tan- 
bark,  which,  after  being  used,  was  discharged  into  the  stream  and 
suffered  to  float  down  the  same.  A  portion  of  this  tan-bark  floated 
down  and  lodged  in  the  plaintiff's  pond,  where  it  accumulated  to 
considerable  extent,  and  some  floated  into  the  flume  to  the  plain- 
tiff's mill,  which  somewhat  incommoded  him.  Sometimes  the  tan- 
bark  would  accumulate  so  as  to  somewhat  impede  the  flow  of  the 
water  into  the  flume,  but  it  did  not  appear  that  the  plaintiff  had 
sustained  much  inconvenience  from  that  cause,  as  it  was  easily  re- 
moved, and  the  obstruction  did  not  often  occur.  The  tan-bark  ac- 
cumulated in  the  plaintiff's  pond  much  more  rapidly  after  the 
defendants  commenced  operating  the  tan  works  in  1849,  and  was 
doubtless  owing  to  the  increased  quantity  of  bark  used  at  the  tan- 
nery; and  after  October,  1849,  portions  of  it  lodged  in  and  upon  the 
plaintiff's  saw-mill  wheel,  whereby  the  same  was  impeded  and  re- 
peatedly stopped,  and  the  plaintiff  was  thereby  subjected  to  some 
little  delay  in  operating  the  mill,  and  labor  in  removing  the  obstruc- 
tion and  getting  the  wheel  in  motion.  The  wheel  was  of  cast  iron, 
and  known  as  the  Fergerson  reaction  wheel,  and  was  so  constructed 
that  when  tan-bark  lodged  in  it,  it  was  somewhat  difficult  to  remove 
it,  but  it  might  have  been  altered  without  impairing  its  usefulness, 
and  at  a  small  expense,  so  that  the  tan-bark  would  not  impede  or 
affect  its  operations;  and  prior  to  1846  the  wheel  used  was  of  a 
different  construction,  and  was  not,  and  would  not  be  obstructed 
or  injuriously  affected  in  any  way  by  the  floating  down  of  the  tan- 
bark. 

Upon  the  hearing  before  the  referee  the  defendants  offered  to 
prove  that  it  had  been  the  universal  and  uniform  custom  and  prac- 


602  SNOW   V.    PARSONS.  [cHAP.  IH. 

tice  in  all  the  counties  of  this  state  to  discharge  the  spent  bark  of 
tanneries  into  the  streams  on  which  they  were  situated,  ever  since 
the  country  was  first  settled,  and  that  dam  owners  situated  below 
on  the  streams  had  never,  so  far  as  the  witnesses  knew,  disputed  the 
right  to  do  so  until  now;  and  that  taimeries  could  not  be  conducted 
at  any  profit  without  that  means  of  disposing  of  their  spent  tan-bark, 
and  that  the  withholding  such  use  of  the  streams  from  tanners  would, 
in  the  belief  of  the  witnesses,  have  excluded  that  branch  of  industry 
from  this  state;  and  that  the  same  custom  and  the  same  practice 
had  unifoniily  prevailed  in  all  the  states  and  counties  of  New  Eng- 
land, so  far  as  the  witnesses  had  had  opportunity  of  knowing. 

To  this  testimony  the  plaintiff  objected.  The  defendants  admitted 
that  prior  to  1844  there  was  no  tannery  on  this  stream.  The  referee, 
intending  to  decide  according  to  law,  excluded  the  testimony  offered ; 
and  the  right  of  the  plaintiff  to  recover  upon  the  foregoing  facts  was 
submitted  by  the  referee  to  the  court;  the  damages  being  assessed 
at  forty  dollars,  if  the  plaintiff  was  entitled  to  recover. 

The  county  court,  September  Term,  1854,  —  Underwood,  J., 
presiding,  —  rendered  judgment,  upon  the  report,  for  the  plaintiff. 
Exceptions  by  the  defendants. 

Redfield,  Ch.J.  The  important  and,  as  I  think,  the  only  ques- 
tion in  this  case,  is  whether  it  is  proper  for  extensive  tanneries,  upon 
moderate-sized  streams,  to  expend  their  refuse,  or  spent  bark,  into 
the  stream.  In  regard  to  many  uses  of  the  water  in  streams,  it  has 
been  so  long  settled  by  common  consent,  or  is  so  obvious  in  itself,  that 
it  is  determinable,  as  matter  of  law.  Such  are  the  uses  for  irrigation, 
for  propelling  machinery,  and  for  watering  cattle,  and  some  others. 
And  in  regard  to  some  debris  or  waste  deposits  in  such  streams, 
there  would  seem  to  be  no  question.  The  uniform  practice,  the  con- 
venience, and  in  some  instances  the  indispensable  necessity,  would 
seem  sufficiently  to  decide  such  cases.  Among  these  may  be  named 
the  infusion  of  soap  dyes,  and  other  materials  used  in  manu- 
facturing, into  the  streams  by  which  the  machinery  is  propelled.  The 
deposit  of  saw-dust,  to  some  extent,  is  nearly  indispensable  in  the 
running  of  saw-mills,  and  most  other  machinery  used  in  the  manu- 
facture of  wood,  and  propelled  by  water  power. 

The  reasonableness  of  such  use  must  determine  the  right,  and 
this  must  depend  upon  the  extent  of  detriment  to  the  riparian  pro- 
prietors below.  If  it  essentially  impaii-s  the  use  below,  then  it  is 
unreasonable  and  unlawful,  unless  it  is  a  thing  altogether  indispen- 
sable to  any  beneficial  use  at  every  pomt  of  the  stream.  An  extent 
of  deposit,  which  might  be  of  no  account  in  some  streams,  might 
seriously  affect  the  usefulness  of  others.  So,  too,  a  kind  of  deposit, 
which  would  affect  one  stream  seriously,  would  be  of  little  impor- 
tance in  another.  There  is  no  doubt  one  must  be  allowed  to  use  a 
stream  in  such  a  manner  as  to  make  it  useful  to  himself,  even  if  it 


I 


CHAP.  III.]  SNOW    V.    PARSONS.  603 

do  produce  slight  inconvenience  to  those  below.  This  is  true  of 
ever>i;hing  which  we  use  in  common  with  others.  The  air  is  some- 
what corrupted  by  the  most  ordinary  use;  large  manufacturing 
establishments  affect  it  still  more  seriously;  and  some,  by  reason  of 
their  vicinity  to  a  numerous  population,  become  so  offensive  and 
destructive  of  comfort,  and  health  even,  as  to  be  regarded  as  common 
nuisances.  Within  reasonable  limits,  those  who  have  a  common  in- 
terest in  the  use  of  air  and  running  water,  must  submit  to  small 
inconveniences  to  afford  a  disproportionate  advantage  to  others. 

It  seems  to  us  that  this  question  of  the  reasonableness  of  the  use 
of  a  stream,  when  it  is  not  settled  by  custom,  and  is  in  its  nature 
doubtful,  should  always  be  regarded  as  one  of  fact,  to  be  determined 
by  the  tribunal  trying  the  facts.  In  the  present  case  it  does  not  seem 
to  have  been  treated  in  that  light,  unless  we  regard  the  judgment  of 
the  county  court  in  favor  of  the  plaintiff  as  determining  it.  And, 
as  much  of  the  testimony  rejected  might  have  had  an  important 
bearing  upon  this  question,  and  no  notice  is  taken  of  this  point 
either  in  the  report  or  the  judgment,  we  must  suppose  it  was  not  the 
purpose  of  the  county  court  to  decide  the  case  upon  that  ground. 
Indeed,  the  report  furnished  no  adequate  materials  for  such  a  deter- 
mination. That  portion  of  the  defendants'  offer  which  tended  to 
show  that  tanneries  could  not  be  operated  to  any  useful  purpose, 
without  thus  disposing  of  their  waste  bark,  was  almost  a  cardinal 
point  in  determining  the  main  question,  and,  if  shown  to  the  extent 
offered,  might  justify  the  court  in  finally  requiring  the  proprietors 
below  to  submit  to  some  inconvenience  that  those  above  might  not 
be  deprived  of  all  benefit  of  the  stream  for  this  kind  of  manufacture. 
And  the  reasonableness  of  plaintiffs  submitting  to  this  inconvenience 
must  depend  upon  its  extent,  and  the  comparative  benefit  to  the 
defendants,  to  be  judged  of  by  the  triers  of  the  facts. 

This  must  be  determined  upon  general  principles  applicable  to 
the  entire  business  of  tarming,  and  the  importance  of  discharging 
its  waste  materials  in  this  mode,  and  the  probable  inconvenience 
of  those  below.  And  if,  in  this  view,  they  regard  the  use  as  an  unlaw- 
ful one,  then  surely  the  defendants  are  liable  to  all  damage  sustained 
by  the  plaintiff,  whether  he  might  have  used  a  wheel  less  liable  to 
such  injury  or  not. 

But  if  the  use  is  fairly  to  be  regarded  as  a  lawful  one,  then,  prob- 
ably, the  plaintiff  should  have  conformed  his  machinery  to  the 
altered  circumstances  of  the  stream.  And  if  the  defendants'  use 
of  the  stream  is  a  lawful  and  allowable  one,  it  will  make  no  differ- 
ence that  the  plaintiff's  mill  was  first  erected,  if  it  had  not  been  in 
operation  a  sufficient  length  of  time  to  acquire  any  prescriptive  right 
to  use  the  water  in  an  extraordinary  manner.  And  as  the  plaintiff's 
present  wheel  was  put  into  his  mill  after  the  defendants'  tannoiy 
was  in  operation,  and  his  other  wheel  would  not  have  been  unfavor- 


604  SNOW    V.    PARSONS.  [CHAP.  HI. 

ably  affected  by  bark,  nothing,  by  way  of  prescription,  or  license, 
or  prior  occupancy,  can  probably  be  claimed. 

And  upon  the  question  of  the  reasonableness  of  the  defendants' 
use  of  the  stream,  it  seems  to  me  the  uniform  custom  of  the  country 
for  generations  would  be  of  some  significance  in  determining  its 
reasonableness.  A  uniform  general  custom  upon  this  subject  ought, 
upon  general  principles,  to  have  a  controlling  force.  We  think, 
therefore,  the  case  should  go  back  to  be  determined,  upon  the  ques- 
tion of  fact,  of  the  reasonableness  of  the  use  by  the  defendants :  1st, 
upon  general  grounds;  2d,  the  peculiar  facts,  if  any,  affecting  the 
reasonableness  of  the  use  in  this  particular  case. 

In  regard  to  the  usage  in  the  country  as  to  tanneries  for  genera- 
tions, without  controversy,  if  shown  as  offered  to  be,  and  if  it  is  all 
one  way,  it  would  have  almost  the  force  of  law.  For  all  the  cases 
which  we  have,  where  reasonable  care  and  diligence  can  be  deter- 
mined as  questions  of  law,  without  going  to  the  jury,  have  grown 
up  out  of  the  practice  of  particular  classes  of  persons,  which,  becom- 
ing settled  and  uniform,  and  known  to  all,  is  declared  by  the  court 
as  a  rule  of  law;  which,  while  it  was  uncertain,  was  matter  of  fact 
to  be  detennined  by  the  jury.  A  familiar  instance  of  this  is  the  de- 
mahding  payment,  and  giving  notice  of  dishonor  of  bills  and  notes, 
which  is  now  fixed  to  the  day  the  note  or  bill  becomes  due,  and  giv- 
ing notice  by  the  mail  of  the  next  day.  Formerly  this  was  submitted 
to  a  juiy  of  merchants,  who  determined  the  reasonableness  of  demand 
and  notice  upon  the  particular  facts  in  the  case,  with  reference  to 
the  more  common  usage  of  merchants. 

So,  too,  in  this  particular  business,  if  the  court  were  tanners,  we 
might  be  able  to  say  that  bark  must,  of  necessity,  be  spent  in  the 
stream  in  order  to  carry  on  the  work  at  all,  or  that,  in  fact,  the  bprk 
did  not  essentially  injure  the  proprietors  below,  or  we  might  know 
the  contrary  of  both  propositions.  But  not  being  such,  it  seems  to 
us  as  much  matter  of  fact  as  any  other  question  of  reasonable  care 
and  diligence. 

It  is  settled  law,  that  every  riparian  proprietor  may  use  the  water 
for  purposes  of  manufacture,  but  so  use  it  as  not  unnecessarily  to 
abridge  the  use  to  others;  i.e.,  every  such  proprietor  may  use  it  with 
care  and  prudence.  What  care  and  prudence  is,  in  such  case,  must 
depend  upon  the  facts  of  each  case,  the  conclusion  to  be  drawn  by  the 
triers  of  the  fact.  And  to  assist  them  in  making  this  conclusion,  if 
they  are  not  themselves  experts  in  the  business,  they  are  entitled 
to  have  the  experience  and  wisdom  of  such  as  are  experts,  to  enable 
them  to  judge  of  the  reasonableness  of  the  particular  use. 

The  measure  of  reasonable  care  and  prudence  in  such  cases  is 
that  which  prudent  and  careful  men  exercise  in  the  management  of 
their  own  business.  And  how  are  we  to  know  this  without  proof, 
in  those  departments  of  business  with  which  we  are  not  familiar  ? 


CHAP.  III.]  ATCHISON    V.    PETERSON.  605 

Proof  that  all  prudent  and  careful  men,  in  the  management  of  this 
business,  pursued  a  given  course,  and  that  others  acquiesced  in  that 
course,  without  objection,  would  seem  to  be  of  the  very  essence  of 
the  inquiry  before  the  jury,  in  such  cases. 

Judgment  reversed,  and  case  rejnanded. 


ATCHISON  V.  PETERSON. 

20  WaU.  (U.S.)  507.     1874. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

By  the  custom  which  has  obtained  among  miners  in  the  Pacific 
States  and  Territories,  where  mining  for  the  precious  metals  is  had 
on  the  public  lands  of  the  United  States,  the  first  appropriator  of 
mines,  whether  in  placers,  veins,  or  lodes,  or  of  waters  in  the  streams 
on  such  lands  for  mining  purposes,  is  held  to  have  a  better  right 
than  others  to  work  the  mines  or  use  the  waters.  The  first  appro- 
priator who  subjects  the  property  to  use,  or  takes  the  necessary 
steps  for  that  purpose,  is  regarded,  except  as  against  the  Government, 
as  the  source  of  title  in  all  controversies  relating  to  the  property. 
As  respects  the  use  of  water  for  mining  puiposes,  the  doctrines  of  the 
common  law  declaratory  of  the  rights  of  riparian  owTiers  were,  at 
an  early  day  after  the  discovery  of  gold,  found  to  be  inapplicable  or 
applicable  only  in  a  very  limited  extent  to  the  necessities  of  miners, 
and  inadequate  to  their  protection.  By  the  common  law  the  riparian 
owTier  on  a  stream  not  na\agable  takes  the  land  to  the  centre  of  the 
stream,  and  such  owner  has  the  right  to  the  use  of  the  water  flowing 
over  the  land  as  an  incident  to  his  estate.  And  as  all  such  owners 
on  the  same  stream  have  an  equality  of  right  to  the  use  of  the  water, 
as  it  naturally  flows,  in  quality  and  without  diminution  in  quantity, 
except  so  far  as  such  diminution  may  be  created  by  a  reasonable  use 
of  the  water  for  certain  domestic,  agricultural,  or  manufacturing 
purposes,  there  could  not  be,  according  to  that  law,  any  such  diver- 
sion or  use  of  the  water  by  one  owner  as  would  work  material  detri- 
ment to  any  other  owTier  below  him.  Nor  could  the  water  bj^  one 
owner  be  so  retarded  in  its  flow  as  to  be  thrown  back  to  the  injury  of 
another  o^vner  above  him.  "It  is  wholly  imm.aterial,"  says  Mr.  Jus- 
tice Story,  in  Tyler  v.  Wilkinson,  4  Mason,  379,  "whether  the  party 
be  a  proprietor  above  or  below  in  the  course  of  the  river;  the  right 
being  common  to  all  the  proprietors  on  the  river,  no  one  has  a  right 
to  diminish  the  quantity  which  will,  according  to  the  natural  cur- 
rent, flow  to  the  proprietor  below,  or  to  throw  it  back  upon  a  pro- 
prietor above.  This  is  the  necessary  result  of  the  perfect  equality 
of  right  among  all  the  proprietors  of  that  which  is  common  to  all." 
"Every  proprietor  of  lands  on  the  banks  of  a  river,"  says  Kent, 


606  ATCHISON    V.    PETERSON.  [CHAP.  HI. 

"has  naturally  an  equal  right  to  the  use  of  the  water  which  flows 
in  the  stream  adjacent  to  his  lands,  as  it  was  wont  to  run  {currere 
solebat)  without  diminution  or  alteration.  No  proprietor  has  a  right 
to  use  the  water  to  the  prejudice  of  other  proprietors  above  or  below 
him,  unless  he  has  a  prior  right  to  divert  it,  or  a  title  to  some  exclu- 
sive enjoyment.  He  has  no  property  in  the  water  itself,  but  a  simple 
usufruct  while  it  passes  along.  Aqua  airrit  et  debet  currere  ut  currere 
solehat.  Though  he  may  use  the  water  while  it  runs  over  his  land  as 
an  incident  to  the  land,  he  cannot  unreasonably  detain  it  or  give  it 
another  direction,  and  he  must  return  it  to  its  ordinary  charmel 
when  it  leaves  his  estate.  Without  the  consent  of  the  adjoining 
proprietors  he  cannot  divert  or  diminish  the  quantity  of  the  water 
which  would  otherwise  descend  to  the  proprietors  below,  nor  throw 
the  water  back  upon  the  proprietors  above  without  a  grant  or  an 
uninterrupted  enjoyment  of  twenty  years,  which  is  evidence  of  it. 
This  is  the  clear  and  settled  doctrine  on  the  subject,  and  all  the  diffi- 
culty which  arises  consists  in  the  application."  3  Kent's  Commen- 
taries, 439,  side  paging. 

This  equality  of  right  among  all  the  proprietors  on  the  same  stream 
would  have  been  incompatible  with  any  extended  diversion  of  the 
v/ater  by  one  proprietor,  and  its  conveyance  for  mining  purposes  to 
points  from  which  it  could  not  be  restored  to  the  stream.  But  the 
Government  being  the  sole  proprietor  of  all  the  pubHc  lands,  whether 
bordering  on  streams  or  otherwise,  there  was  no  occasion  for  the 
apphcation  of  the  common-law  doctrine  of  riparian  proprietorship 
with  respect  to  the  waters  of  those  streams.  The  Government,  by 
its  silent  acquiescence,  assented  to  the  general  occupation  of  the  pub- 
lic lands  for  mining,  and,  to  encourage  their  free  and  unlimited  use 
for  that  puipose,  reserved  such  lands  as  were  mineral  from  sale  and 
the  acquisition  of  title  by  settlement.  And  he  who  first  connects 
his  own  labor  with  property  thus  situated  and  open  to  general  explo- 
ration does,  in  natural  justice,  acquire  a  better  right  to  its  use  and 
enjo^inent  than  others  who  have  not  given  such  labor.  So  the  miners 
on  the  public  lands  throughout  the  Pacific  States  and  Territories 
by  their  customs,  usages,  and  regulations  everywhere  recognized 
the  inherent  justice  of  this  principle;  and  the  principle  itself  was 
at  an  early  period  recognized  by  legislation  and  enforced  by  the 
courts  in  those  States  and  Territories.  In  Irwin  v.  Phillips,  5  Cali- 
fornia, 140,  a  case  decided  by  the  Supreme  Court  of  California  in 
January,  1855,  this  subject  was  considered.  After  stating  that  a  sys- 
tem of  rules  had  been  permitted  to  grow  up  with  respect  to  mining 
on  the  public  lands  by  the  voluntary  action  and  assent  of  the  popu- 
lation, whose  free  and  unrestrained  occupation  of  the  mineral  region 
had  been  tacitly  assented  to  by  the  Federal  Government,  and  heartily 
encouraged  by  the  expressed  legislative  policy  of  the  State,  the  court 
said:  "If  there  are,  as  must  be  admitted,  many  things  connected 


CHAP.  III.]  ATCHISON    V.    PETERSON.  607 

with  this  system  which  are  crude  and  undigested,  and  subject  to 
fluctuation  and  dispute,  there  are  still  some  which  a  universal  sense 
of  necessity  and  propriety  have  so  firmly  fixed  as  that  they  have 
come  to  be  looked  upon  as  having  the  force  and  effect  of  res  adjudi- 
cata.  Among  these  the  most  important  are  the  rights  of  miners  to 
be  protected  in  their  selected  localities,  and  the  rights  of  those  who, 
by  prior  appropriation,  have  taken  the  waters  from  their  natural 
beds,  and  by  costly  artificial  works  have  conducted  them  for  miles 
over  mountains  and  ra\ines  to  supply  the  necessities  of  gold  diggers, 
and  without  which  the  most  important  interests  of  the  mineral  re- 
gion would  remain  without  development.  So  fully  recognized  have 
become  these  lights,  that  without  any  specific  legislation  conferring 
or  confirming  them,  they  are  alluded  to  and  spoken  of  in  various 
acts  of  the  legislature  in  the  same  maimer  as  if  they  were  rights  which 
had  been  vested  by  the  most  distinct  expression  of  the  will  of  the 
law-makers." 

This  doctrine  of  right  by  prior  appropriation  was  recognized  by 
the  legislation  of  Congress  in  1866.  The  act  granting  the  right  of 
way  to  ditch  and  canal  owners  over  the  public  lands,  and  for  other 
purposes,  passed  on  the  26th  of  July  of  that  year,  in  its  ninth  section 
declares  "that  whenever,  by  priority  of  possession,  rights  to  the  use 
of  water  for  mining,  agricultural,  manufacturing,  or  other  purposes, 
have  vested  and  accrued,  and  the  same  are  recognized  and  acknowl- 
edged by  the  local  customs,  laws,  and  decisions  of  courts,  the  pos- 
sessors and  o\^^lers  of  such  vested  rights  shall  be  maintained  and 
protected  in  the  same."  14  Stat,  at  Large,  253. 

The  right  to  water  by  prior  appropriation,  thus  recognized  and 
established  as  the  law  of  miners  on  the  mineral  lands  of  the  public 
domain,  is  limited  in  every  case,  in  quantity  and  quality,  bj^  the 
uses  for  which  the  appropriation  is  made.  A  different  use  of  the 
water  subsequently  does  not  affect  the  right;  that  is  subject  to  the 
same  limitations,  whatever  the  use.  The  appropriation  does  not 
confer  such  an  absolute  right  to  the  body  of  the  water  diverted 
that  the  owner  can  allow  it,  after  its  diversion,  to  run  to  waste  and 
prevent  others  from  using  it  for  mining  or  other  legitimate  purposes; 
nor  does  it  confer  such  a  right  that  he  can  insist  upon  the  flow  of  the 
water  without  deterioration  in  quality,  where  such  deterioration 
does  not  defeat  nor  impair  the  uses  to  which  the  water  is  applied. 

Such  was  the  purport  of  the  ruling  of  the  Supreme  Court  of  Cali- 
fornia in  Butte  Canal  and  Ditch  Company  v.  Vaughn,  11  California, 
143,  where  it  was  held  that  the  first  appropriator  had  only  the  right 
to  insist  that  the  water  should  be  subject  to  his  use  and  enjoyment 
to  the  extent  of  his  original  appropriation,  and  that  its  quality  should 
not  be  impaired  so  as  to  defeat  the  purpose  of  that  appropriation. 
To  this  extent,  said  the  court,  his  rights  go  and  no  farther;  and  that 
in  subordination  to  them  subsequent  appropriators  may  use  the 


608  ATCHISON   V.    PETERSON.  [cHAP.  IH. 

channel  and  waters  of  the  stream,  and  mingle  with  its  waters  other 
waters,  and  divert  them  as  often  as  they  choose;  that  whilst  enjoy- 
ing his  original  rights  the  first  appropriator  had  no  cause  of  com- 
plaint. In  the  subsequent  case  of  Ortman  v.  Dixon,  13  California, 
33  (see  also  Lohdell  v.  Simpson,  2  Nevada,  274),  the  same  court  held 
to  the  same  purport,  that  the  measure  of  the  right  of  the  first  appro- 
priator of  the  water  as  to  extent  follows  the  nature  of  the  appropria 
tion  or  the  uses  for  which  it  is  taken. 

What  diminution  of  quantity,  or  deterioration  in  quality,  will 
constitute  an  invasion  of  the  rights  of  the  first  appropriator  will  de- 
pend upon  the  special  circumstances  of  each  case,  considered  with 
reference  to  the  uses  to  which  the  water  is  applied.  A  sHght  deteri- 
oration in  quality  might  render  the  water  unfit  for  drink  or  domestic 
purposes,  whilst  it  would  not  sensibly  impair  its  value  for  mining 
or  irrigation.  In  all  controversies,  therefore,  between  him  and  par- 
ties subsequently  claiming  the  water,  the  question  for  determination 
is  necessarily  whether  his  use  and  enjoyment  of  the  water  to  the 
extent  of  his  original  appropriation  have  been  impaired  by  the  acts 
of  the  defendant.  But  whether,  upon  a  petition  or  bill  asserting  that 
his  prior  rights  have  been  thus  invaded,  a  court  of  equity  will  in- 
terfere to  restrain  the  acts  of  the  party  complained  of,  will  depend 
upon  the  character  and  extent  of  the  injury  alleged,  whether  it  be 
irremediable  in  its  nature,  whether  an  action  at  law  would  afford 
adequate  remedy,  whether  the  parties  are  able  to  respond  for  the 
damages  resulting  from  the  injury,  and  other  considerations  which 
ordinarily  govern  a  court  of  equity  in  the  exercise  of  its  preventive 
process  of  injunction. 

If,  now,  we  apply  the  principles  thus  stated  to  the  present  case, 
the  question  involved  will  be  of  easy  solution.  It  appears  from  the 
evidence  that  there  is  at  the  point  where  the  defendants  work  their 
mining  claims  only  about  two  hundred  inches  of  water  in  the  creek, 
according  to  miners'  measurement;  that  between  that  point  and  the 
point  where  the  Helena  ditch  taps  the  creek  the  distance  is  about 
fifteen  miles;  and  that  between  those  points  the  creek  is  supplied 
by  several  tributary  streams  of  clear  water,  so  that  at  the  point 
where  the  water  is  diverted  its  volume  amounts  to  about  fifteen 
hundred  inches.  Of  this  water  the  Helena  ditch  diverts  five  hun- 
dred inches,  and  conveys  it  nearly  eighteen  miles  to  the  localities 
where  it  is  sold.  Running  water  has  a  tendency  to  clear  itself,  and 
that  result  is  often  produced  by  a  flow  of  a  few  miles.  But  in  this 
case  the  evidence  shows  that  the  water  as  it  enters  the  Helena  ditch 
is  muddied  and  to  some  extent  is  affected  by  sand.  At  the  same 
time  there  is  a  great  preponderance  in  the  evidence  to  the  effect  that 
the  deterioration  in  quality  from  this  circumstance  is  very  slight 
and  does  not  render  the  water  to  any  appreciable  extent  less  useful 
or  salable  for  mining  purposes  at  the  localities  to  which  it  is  con- 


CHAP.  III.]  WEBB    V.    PORTLAND    MFG.    CO.  609 

veyed;  and  that  no  additional  labor  is  required  on  the  ditch  on  ac- 
count of  the  muddied  condition  of  the  water.  There  is  also  much 
doubt  left  by  the  evidence  whether  the  sand  carried  into  the  ditch 
does  not  to  a  very  great  extent  come  from  the  hillsides  lying  between 
it  and  the  mining  of  the  defendants,  or  lying  along  the  course  of  the 
ditch.  A  sand-gate  at  the  head  of  the  ditch  is  necessary,  whether 
there  is  or  is  not  mining  on  tlie  stream  above;  and  the  accumulation 
of  sand  from  all  sources,  from  the  hillsides  as  well  as  from  the  mining 
of  the  defendants,  only  requires  the  additional  labor  of  one  person 
for  a  few^  minutes  each  day.  The  injury  thus  sustained,  and  which 
is  only  to  a  limited  extent  attributable  to  the  mining  of  the  defend- 
ants, if  at  all,  is  hardly  appreciable  in  comparison  with  the  damage 
which  would  result  to  the  defendants  from  the  indefinite  suspension 
of  work  on  their  valuable  mining  claims.  The  defendants  are  also 
responsible  parties,  capable,  according  to  the  evidence,  of  answering 
for  any  damages  which  their  mining  produces,  if  any,  to  the  plain- 
tiffs. Under  these  circumstances  we  think  there  was  no  error  in  the 
refusal  of  the  court  below  to  interfere  by  injunction  to  restrain  their 
operations,  and  in  leaving  the  plaintiffs  to  their  remedy,  if  any,  by 
an  action  at  law. 

With  respect  to  the  water  diverted  by  the  Yaw-Yaw  ditch,  it  is 
shown  that  its  deterioration,  so  far  as  the  deterioration  exceeds  that 
of  the  water  in  the  Helena  ditch,  is  caused  by  sand  and  sediment 
brought  by  a  tributary  which  enters  the  creek  below  the  head  of  the 
Helena  ditch. ' 

Decree  affirmed. 


WEBB   V.   PORTLAND  MFG.  CO. 

3  Sum.  (U.S.  CO  189.     1838. 

The  plaintiff  was  the  owner  of  land,  upon  the  river  Presumpscut, 
upon  which  mills  had  been  erected.  The  defendants,  by  a  canal, 
withdrew  some  of  the  water  from  the  river.  The  defendants  main- 
tained that  this  withdrawal  of  the  water  did  no  actual  damage  to  the 
plaintifT. 

Story,  J.  I  can  very  well  understand,  that  no  action  lies  in  a 
case  where  there  is  damnum  absque  injuria,  that  is,  where  there  is 
a  damage  done  without  any  wrong  or  violation  of  any  right  of  the 
plaintiff.  But  I  am  not  able  to  understand,  how  it  can  correctly  be 
said,  in  a  legal  sense,  that  an  action  will  not  lie,  even  in  case  of  a 
wrong  or  violation  of  a  right,  unless  it  is  followed  by  some  percep- 
tible damage,  which  can  be  established,  as  a  matter  of  fact;  in  other 
words,  that  injuria  sine  damno  is  not  actionable.  On  the  contrary, 
from  my  earliest  reading,  I  have  considered  it  laid  up  among  the 


610  WEBB    V.    PORTLAND    MFG.    CO.  [cHAP.  in. 

very  elements  of  the  common  law,  that,  wherever  there  is  a  wrong, 
there  is  a  remedy  to  redress  it;  and  that  every  injury  imports  dam- 
age in  the  nature  of  it;  and,  if  no  other  damage  is  established,  the 
party  injured  is  entitled  to  a  verdict  for  nominal  damages.  A  for- 
tiori, this  doctrine  applies,  where  there  is  not  only  a  violation  of  a 
right  of  the  plaintiff;  but  the  act  of  the  defendant,  if  continued,  may 
become  the  foundation,  by  lapse  of  time,  of  an  adverse  right  in  the 
defendant;  for  then  it  assumes  the  character,  not  merely  of  a  ^'iola- 
tion  of  a  right,  tending  to  diminish  its  value,  but  it  goes  to  the  abso- 
lute destruction  and  extinguishment  of  it.  Under  such  circumstances, 
unless  the  party  injured  can  protect  his  right  from  such  a  violation 
by  an  action,  it  is  plain  that  it  may  be  lost  or  destroyed,  without 
any  possible  remedial  redress.  In  my  judgment  the  common  law 
countenances  no  such  inconsistency^  not  to  call  it  by  a  stronger  name. 
Actual,  perceptible  damage  is  not  indispensable  as  the  foundation 
of  an  action.  The  law  tolerates  no  farther  inquiry  than  whether 
there  has  been  the  violation  of  a  right.  If  so,  the  party  injured  is 
entitled  to  maintain  his  action  for  nominal  damages,  in  vindication  of 
his  right,  if  no  other  damages  are  fit  and  proper  to  remunerate  him. 


Let  us  come,  then,  to  the  only  remaining  question  in  the  cause; 
and  that  is,  whether  any  right  of  the  plaintiff,  as  mill-owner  on  the 
lower  dam,  is  or  will  be  violated  by  the  diversion  of  the  water  by 
the  canal  of  the  defendants.  And,  here,  it  does  not  seem  to  me,  that, 
upon  the  present  state  of  the  law,  there  is  any  real  ground  for  con- 
troversy, although  there  were  formerly  many  vexed  questions  and 
much  contrariety  of  opinion.  The  true  doctrine  is  laid  down  in 
Wright  v.  Howard,  1  Sim.  &  Stu.  R.  190,  by  Sir  John  Leach,  in  re- 
gard to  riparian  proprietors,  and  his  opinion  has  since  been  deliber- 
ately adopted  by  the  King's  Bench.  "Prima  fade  (says  that 
learned  judge),  the  proprietor  of  each  bank  of  a  stream  is  the  pro- 
prietor of  half  the  land  covered  by  the  stream ;  but  there  is  no  prop- 
erty in  the  water.  Every  proprietor  has  an  equal  right  to  use  the 
water  which  flows  in  the  stream;  and,  consequently,  no  proprietor 
can  have  the  right  to  use  the  water  to  the  prejudice  of  any  other 
proprietor.  Without  the  consent  of  the  other  proprietors,  w^ho  may 
be  affected  by  his  operations,  no  proprietor  can  either  diminish  the 
quantity  of  water,  which  would  otherwise  descend  to  the  proprietors 
below,  nor  throw  the  water  back  upon  the  proprietors  above.  Every 
proprietor,  who  claims  a  right,  either  to  throw  the  water  back  above, 
or  to  diminish  the  quantity  of  water  which  is  to  descend  below, 
must,  in  order  to  maintain  his  claim,  either  prove  an  actual  grant 
or  license  from  the  proprietors  affected  by  his  operations,  or  must 
prove  an  uninterrupted  enjojinent  of  twenty  years,  which  term  of 
twenty  years  is  now  adopted  upon  a  principle  of  general  conven- 
ience, as  affording  conclusive  presumption  of  a  grant."  The  same 


CHAP.  III.]  WEBB    V.    PORTL.^XD    MFG.    CO.  611 

doctrine  was  fully  recognised  and  acted  upon  in  the  case  of  Tyler 
V.  Wilkinson,  4  IMason  R.  397,  400,  401,  402;  and  also  in  the  case  of 
Blanchard  v.  Baker,  8  Greenl.  R.  253,  266.  In  the  latter  case  the 
learned  judge  (Mr.  Justice  Weston),  who  delivered  the  opinion  of 
the  court,  used  the  following  emphatic  language:  "The  right  to  the 
use  of  a  stream  is  incident  or  appurtenant  to  the  land  through  which 
it  passes.  It  is  an  ancient  and  well-established  principle,  that  it  can- 
not be  lawfully  diverted,  unless  it  is  returned  again  to  its  accustomed 
channel,  before  it  passes  the  land  of  a  proprietor  below.  Running 
water  is  not  susceptible  of  an  appropriation,  which  will  justify  the 
diversion  or  unreasonable  detention  of  it.  The  proprietor  of  the 
water-course  has  a  right  to  avail  himself  of  its  momentum  as  a  povv-er, 
which  may  be  turned  to  beneficial  purposes."  Mr.  Chancellor  Kent 
has  also  summed  up  the  same  doctrine,  with  his  usual  accuracy,  in 
the  brief,  but  pregnant,  text  of  his  Com^mentaries  (3  Kent's  Comm. 
Lect.  42,  p.  439,  3d  edit.) ;  and  I  scarcely  know  where  else  it  can  be 
found  reduced  to  so  elegant  and  satisfactory  a  formulary.  In  the  old 
books,  the  doctrine  is  quaintly  though  clearly  stated ;  for  it  is  said, 
that  a  water-course  begins  ex  jure  naturae,  and  having  taken  a  cer- 
tain course  natural^,  it  cannot  be  [lawfully]  diverted.  Aqua  currit, 
et  debet  currere,  ut  currere  solebat. 

The  same  principle  applies  to  the  o^vners  of  mills  on  a  stream. 
They  have  an  undoubted  right  to  the  flow  of  the  water,  as  it  has 
been  accustomed  of  right  and  naturally  to  flow  to  their  respective 
mills.  The  proprietor  above  has  no  right  to  divert,  or  unreasonably 
to  retard  this  natural  flow  to  the  mills  below;  and  no  proprietor 
below  has  a  right  to  retard  or  turn  it  back  upon  the  mills  above,  to 
the  prejudice  of  the  right  of  the  proprietors  thereof.  This  is  clearly 
established  by  the  authorities  already  cited;  the  only  distinction 
between  them  being,  that  the  right  of  a  riparian  proprietor  arises 
by  mere  operation  of  law,  as  an  incident  to  his  owTiership  of  tlie 
bank;  and  that  of  a  mill-owTier,  as  an  incident  to  his  mill.  Bealey  v. 
Shaw,  6  East  R.  208;  Saunders  v.  Newman,  1  B.  &  Aid.  R.  258; 
Mason  v.  Hill,  3  B.  &  Adolph.  R.  304;  s.c.  5  B.  &  Adolph.  1;  Blan- 
chard V.  Baker,  8  Greenl.  R.  253,  268;  and  Tyler  v.  Wilkinson,  4 
Mason  R.  397,  400  to  405,  are  fully  in  point.  Mr.  Chancellor  Kent, 
in  his  Commentaries,  relies  on  the  same  principles,  and  fully  sup- 
ports them  by  a  large  survey  of  the  authorities.  3  Kent  Comm. 
Lect.  52,  pp.  441  to  445,  3d  edit. 

Now,  if  this  be  the  law  on  this  subject,  upon  what  ground  can  the 
defendants  insist  upon  a  diversion  of  the  natural  stream  from  the 
plaintiff's  mills,  as  it  has  been  of  right  accustomed  to  flow  thereto? 
First,  it  is  said,  that  there  is  no  perceptible  damage  done  to  the  plain- 
tiff. That  suggestion  has  been  already  in  part  answered.  If  it  were 
true,  it  could  not  authorize  a  diversion,  because  it  impairs  the  right 
of  the  plaintiff  to  the  full,  natural  flow  of  the  stream;  and  may  be- 


G12  WEBB    V.    PORTLAND    MFG.    CO.  ][CHAP.  III. 

come  the  foundation  of  an  adverse  right  in  the  defendants.  In  such 
a  case,  actual  damage  is  not  necessary  to  be  estabhshed  in  proof. 
The  law  presumes  it.  The  act  imports  damage  to  the  right,  if  dam- 
age be  necessary.  Such  a  case  is  wholly  distinguishable  from  a  mere 
fugitive,  temporary  trespass,  by  diverting  or  withdrawing  the  water 
a  short  period,  without  damage,  and  without  any  pretence  of  right. 
In  such  a  case  the  wrong,  if  there  be  no  sensible  damage  and  it  be 
transient  in  its  nature  and  character,  as  it  does  not  touch  the  right, 
may  possibly  (for  I  give  no  opinion  upon  such  a  case)  be  without 
redress  at  law;  and  certainly  it  would  found  no  ground  for  the  inter- 
position of  a  court  of  equity  by  way  of  injunction. 

But  I  confess  myself  wholly  unable  to  comprehend,  how  it  can 
be  assumed,  in  a  case  like  the  present,  that  there  is  not  and  cannot 
be  an  actual  damage  to  the  right  of  the  plaintiff.  What  is  that  right? 
It  is  the  right  of  having  the  water  flow  in  its  natural  current  at  all 
times  of  the  year  to  the  plaintiff's  mills.  Now,  the  value  of  the  mill 
privileges  must  essentially  depend,  not  merely  upon  the  velocity 
of  the  stream,  but  upon  the  head  of  water  which  is  permanently 
maintained.  The  necessary  result  of  lowering  the  head  of  water 
permanently  would  seem,  therefore,  to  be  a  direct  diminution  of 
tlie  value  of  the  privileges.  And  if  so,  to  that  extent  it  must  be  an 
actual  damage. 

Note.  —  It  has  often  been  held,  or  said,  that  nominal  damages 
may  be  given  for  a  diversion  of  water,  accustomed  to  flow  over  the 
land  of  the  plaintiff,  without  proof  that  such  diversion  caused  dam- 
age to  the  plaintiff.  See  North  Alabama  Ry.  Co.  v.  Jones,  156  Ala. 
360;  Moore  v.  Clear  Lake  Water  Works,  68  Cal.  146;  Hendrick  v. 
Cook,  4  Ga.  241,  247;  TiUotson  v.  Smith,  32  N.H.  90;  Roberts  v. 
Gwyfrai  District  Council,  [1899]  1  Ch.  583. 

In  Bolivar  Mfg.  Co.  v.  Neponset  Mfg.  Co.,  16  Pick.  (Mass.)  241, 
it  was  held  that,  if  A  for  twenty  years  diverts  water  accustomed  to 
flow  over  the  land  of  B,  A  acquires  a  prescriptive  right  to  toake  such 
diversion,  even  though  the  diversion  had  not  caused  any  damage 
to  B  during  the  twenty  years.  Wilde,  J.,  said  (p.  247) :  "But  if  the 
defendants  did  not  suffer  any  actual  damage,  it  would  be  of  no  im- 
portance in  this  case;  for  the  plaintiffs'  claim  was  adverse  to  theirs, 
and  they  might  have  maintained  an  action  without  proof  of  actual 
damages,  if  the  plaintiffs  had  no  right  to  divert  the  water.  The  law 
presumes  damage  when  a  man's  right  is  invaded,  and  if  one  suffers 
his  rights  to  be  invaded,  and  acquiesces  in  an  adverse  claim  for  more 
than  twenty  years,  it  is  quite  unimportant  whether  he  suffers  any 
actual  damages  or  not." 

The  student  should  compare  this  doctrine  with  the  doctrine  of 
Smith  V.  Thackerah,  L.  R.  1  C.  P.  564,  supra,  and  Sturges  v.  Bridg- 
man,  L.  R.  11  Ch.  D.  852,  supra. 


CHAP.  III.]  MCCORMICK   V.    HORAN.  613 

If  the  courts  held  that  the  plaintiff  had  no  cause  of  action  until 
he  suffered  actual  damage  from  the  acts  of  the  defendant,  there  would 
be  no  danger  of  the  defendant's  acquiring  a  prescriptive  right  through 
the  plaintiff's  acquiescence  in  acts  which  did  him  no  damage.  Until 
there  is  a  cause  of  action,  the  prescriptive  period  does  not  begin  to 
run.  The  doctrine  that  a  cause  of  action  should  be  given  to  the  plain- 
tiff when  he  has  suffered  no  actual  damage,  in  order  to  prevent  the 
establishment  of  a  prescriptive  right  against  him,  will  not,  it  is  sub- 
mitted, stand  analysis. 

See  Last  Chance  Water  Ditch  Co.  v.  Heilbron,  86  Cal.  1,  20;  Hols- 
man  v.  Boiling  Spring  Bleaching  Co.,  1  .McCarter  (N.J.)  335,  345; 
Norton  v.  Volentine,  14  Vt.  239,  245. 


Mccormick  v.  horan. 

81  N.Y.  86.     1880. 

This  action  was  brought  to  restrain  defendant  from  obstructing 
the  flow  of  water  in  a  water-course  running  from  the  lands  of  plain- 
tiffs on  to  and  across  the  lands  of  defendant  below,  and  to  compel 
him  to  remove  obstructions  placed  by  him  in  the  stream. 

The  facts  found  were  substantially  these:  Plaintiffs  operated  a 
quarry  upon  their  lands  near  said  water-course,  which  started  from 
a  spring  upon  plaintiffs'  lands.  After  the  lands  were  cleared  up  over 
which  the  stream  passed,  and  many  years  prior  to  the  acts  com- 
plained of,  the  owners,  in  order  to  direct  and  control  the  flow  of  the 
water  in  the  stream,  dug  ditches  and  confined  the  flow  therein; 
plaintiffs  dug  such  a  ditch  on  their  lands,  following  the  general  course 
of  the  natural  stream  to  the  boundary  line  of  their  lands  and  those  of 
defendant  adjoining.  This  ditch  was  continued  by  the  then  owner 
of  defendant's  premises  across  the  same.  This  ditch  was  from  time 
to  time  changed  and  improved,  and  when  defendant  went  into  pos- 
session the  ditch  across  his  lands  was  walled  up  and  covered  over. 
The  ditch  was  capable  of  holding  all  the  water  that  ran  in  the  stream 
except  in  cases  of  high  water.  Plaintiffs  worked  their  quarry  during 
the  summer  season,  and  had  at  the  time  of  the  occurrence  in  ques- 
tion excavated  above  three-fourths  of  an  acre  to  a  depth  of  from 
five  to  twelve  feet.  Small  water-courses  were  cut  in  the  progress  of 
the  excavation;  the  water  therefrom  ran  into  the  bed  of  the  quarry; 
in  the  winter  the  snows  drifted  into  the  quarry  and  melted;  in  the 
spring  the  surface  waters  from  the  surrounding  lands  also  flowed 
into  it.  The  waters  so  accumulating  in  said  quarrj^,  if  it  had  not 
been  excavated,  would  naturally  descend  and  flow  into  said  water- 
course. In  the  spring  of  each  year  plaintiffs  pumped  the  water  from 
the  quany  into  said  water-course.   The  court  found  that  the  flow 


614  Mccormick  v.  hor.^.n.  [chap.  hi. 

of  water  while  the  pumps  are  at  work  is  increased  in  amount,  but 
tiiat  the  flow  is  no  greater  than  in  the  earher  spring  months,  and 
that  the  capacity  of  the  water-course  as  it  runs  in  said  ditch  is  ample 
to  carry'  off  all  the  water  pumped  therein  at  any  time,  together  with 
the  other  water  running  therein.  In  May,  1876,  and  before  plain- 
tiffs had  begun  to  pump  the  water  from  their  quarr>',  defendant  took 
up  the  stone  covering  of  the  ditch  upon  his  land,  filled  it  with  earth 
and  stone  so  as  to  prevent  the  flow  of  water  therein  and  built  a  dam 
across  said  water-course  near  the  line  between  his  and  plaintiffs' 
land,  which  prevented  the  flow  of  any  water  therein  until  the  water 
had  risen  to  the  top  of  said  dam,  thereby  causing  the  water  to  set 
back  into  and  to  fill  up  plaintiffs'  quarry  and  to  overflow  their  ad- 
joining lands. 

Andrews,  J.  Water-courses  are  the  means  which  nature  has  pro- 
vided for  the  drainage  of  the  country  through  which  they  pass,  and 
from  the  natural  servitude  of  lands  upon  a  water-course  to  receive  the 
waters  flowing  therein  from  the  lands  above,  springs  the  right  of  the 
owner  of  the  superior  heritage  to  have  the  water  from  his  lands,  of 
which  the  water-course  is  the  natural  outlet,  drained  into  and  car- 
ried off  thereby,  and  the  duty  of  the  owner  of  the  inferior  and  servi- 
ent tenement  not  to  interfere  with  or  obstruct  its  passage.  But  the 
right  to  the  use  of  a  water-course  for  the  discharge  of  surface  or 
other  waters  exists  only  in  respect  of  waters  of  which  the  water- 
course is  the  natural  outlet,  and  it  does  not  justify  the  diversion  and 
turning  of  the  water  of  one  stream  into  another,  not  its  natural  chan- 
nel, thereby  subjecting  lands  on  the  stream  into  which  the  diversion 
is  made  to  the  servitude  or  easement  of  a  water-way  for  the  water 
thus  discharged  into  it.  This  is  the  principle  upon  which  several  of 
the  cases  to  which  the  appellant  refers  were  decided,  and  they  have 
no  appUcation  to  the  case  before  us.  Merritt  v.  Parker,  1  N.J.  460; 
Tillotson  V.  Smith,  32  N.H.  90;  Mayor,  etc.,  of  Baltimore  v.  Appold, 
42  Md.  442. 

The  right  of  an  owTier  of  lands,  through  which  a  water-course  runs, 
to  have  the  same  kept  open,  and  to  discharge  therein  the  surface 
water,  which  naturally  flows  thereto,  is  not  however  limited  to  the 
drainage  and  discharge  of  surface  water  into  the  stream  in  the  same 
precise  manner  as  when  the  land  was  in  a  state  of  nature,  and  un- 
changed by  cultivation  or  improvements.  The  owner  of  lands  drained 
by  a  water-course  may  change  and  control  the  natural  flow  of  the 
surface  water  therein,  and  by  ditches  or  other^dse  accelerate  the  flow, 
or  increase  the  volume  of  water  which  reaches  the  stream,  and  if  he 
does  this  in  the  reasonable  use  of  his  own  premises,  he  exercises  only 
a  legal  right,  and  incurs  no  liability  to  a  lower  proprietor.  Waffle  v. 
N.  Y.  C.  R.R.  Co.,  53  N.Y.  11;  Miller  v.  Laubach,  47  Pa.  St.  154. 
I'his  right  is  subject  to  the  qualification  that  one  o^Mier  cannot,  by 
artificial  arrangements  on  his  land,  concentrate  and  discharge  into 


CHAP.  III.]  NININGER    V.    NORWOOD.  615 

the  stream  surface  water,  in  quantities  beyond  the  natural  capacity  of 
the  stream  to  the  damage  of  other  o\vners.  Noonan  v.  City  of  Albany, 
79  N.Y.  470.  The  interests  of  society  are  promoted  by  the  cultiva- 
tion and  improvement  of  the  soil,  the  working  of  mines,  and  by  other 
industries  connected  with  the  use  of  land;  and  the  rule  of  law  does 
not  prevent  the  use  of  water-courses  for  artificial  drainage,  although 
the  volume  of  the  stream  is  thereby  somewhat  enlarged,  and  the 
water  is  discharged  at  a  different  time  or  manner  from  what  it  would 
be  if  the  land  was  kept  in  a  state  of  nature,  provided  no  material 
injury  is  occasioned  to  other  riparian  owners.  These  views  are  de- 
cisive of  this  case.  The  plaintiffs,  in  opening  the  quarry  on  their 
premises,  were  exercising  a  lawful  right.  The  excavation  made  formed 
a  reservoir  into  which  the  surface  water  from  the  contiguous  lands 
collected,  and  in  the  spring,  when  the  plaintiffs  commenced  their 
operations,  they  pumped  this  water,  together  with  that  arising  from 
the  melting  snows,  and  what  came  from  the  small  water-courses  cut 
off  by  the  excavation,  into  the  water-course,  which  lower  down  crossed 
the  defendant's  farm. 

The  court  found  that  this  water,  if  the  excavation  had  not  been 
made,  would  have  naturally  descended  and  flowed  into  the  stream, 
and  that  although  the  flow  of  water  when  the  pumping  was  going 
on  was  greater  than  it  otherwise  would  have  been,  the  natural  capac- 
ity of  the  water-course  was  sufficient  to  carry  off  the  water  pumped 
into  it,  together  with  the  other  water  running  in  the  stream,  and 
there  was  no  finding  that  the  defendant  sustained  any  damage  from 
the  acts  of  the  plaintiffs. 

Under  these  circumstances,  the  act  of  the  defendant,  in  filling  up 
the  channel  and  obstructing  the  flow  of  the  water,  was  unlawful, 
and  the  judgment  should  therefore  be  affirmed. 

All  concur  except  Danforth,  J.,  taking  no  part,  having  been  of 
counsel.  Judgment  affirmed. 


NININGER  V.  NORWOOD. 

72  Ala.  277.     1882. 

BiiiCKELL,  C.J.  The  original  bill  was  filed  by  Mrs.  Mary  R.  Nor- 
wood, a  married  woman,  owning  a  plantation,  partly  as  a  statutory 
and  partly  as  an  equitable  separate  estate,  to  enjoin  the  defendants, 
who  own  an  adjoining  plantation,  from  continuing  thereon  levees, 
or  embankments,  causing  waters  to  flow  back  upon  the  lands  of 
the  complainant,  which,  following  their  natural  outlet,  had  always 
flowed  therefrom  over  the  lands  of  the  defendants.  The  material 
averments  of  the  bill  arc:  That  a  stream,  known  as  "Lake  Creek," 
runs  through  the  plantation  of  Mrs.  Norwood.    In  times  of  heavy 


616  NININGER    V.    NORWOOD.  [CHAP.  III. 

rains,  large  quantities  of  water  escaping  over  the  banks  of  this  stream, 
upon  the  lands  of  complainant,  with  the  accumulations  of  rain- 
water, have  a  natural  outlet  therefrom  over  the  lands  of  the  defend- 
ants. To  prevent  these  waters  from  flowing  over  and  flooding  their 
lands,  the  defendants  have  erected  embankments,  or  levees,  which 
cause  them  to  flow  back  and  accumulate  upon  the  lands  of  the  com- 
plainant, rendering  them  less  fit  for  cultivation,  and  in  other  respects 
injuring  them. 

The  remaining,  and  more  important,  question  involved  in  the 
demurrer  to  the  bill,  is  the  existence  of  the  right  asserted  by  the 
complainant.  Whether,  as  the  owner  of  the  land  upon  which  the 
waters  escaping  from  the  creek  in  times  when  it  is  swollen  by  hea^'y 
rains,  with  the  waters  accumulating  by  the  fall  of  rain,  the  complain- 
ant has  a  natural  easement  in  the  lands  of  the  defendants,  to  the 
extent  of  the  natural  flow  of  these  waters  from  her  land,  to  and  upon 
the  lands  of  the  defendants,  is  the  controlling,  decisive  question. 
In  Hughes  v.  Anderson,  68  Ala.  280,  we  considered  the  right  of  the 
owner  of  an  upper  parcel  of  lands  to  collect  and  concentrate  the 
waters  falling  or  originating  upon  his  lands,  increasing  the  flow, 
and  discharging  them  in  greater  volumes  upon  the  lower  parcel. 
Following  the  case  of  Kauffman  v.  Griesemer,  26  Penn.  St.  407,  we 
held,  that  the  owner  of  the  upper  or  superior  heritage  had  not  the 
right  to  create  new  charmels  for  the  water  falling  or  originating 
upon  his  lands,  but  that  he  could  improve  his  lands,  though  the  vol- 
ume of  water  discharged  by  its  accustomed  channels  was  thereby 
increased.  There  are  many  interesting  questions  of  growing  impor- 
tance, connected  with  the  general  subject  of  the  rights  of  adjoining 
proprietors  as  to  water  falling  or  originating  upon  lands,  but  we 
confine  our  consideration  to  the  single  question  the  case  presents. 

The  doctrine  of  the  civil  law  is,  that  the  owner  of  the  upper  or 
dominant  estate  has  a  natural  easement  or  servitude  in  the  lower  or 
servient  one,  to  discharge  all  waters  falling  or  accumulating  upon 
his  land,  which  is  higher,  upon  or  over  the  land  of  the  servient  owner, 
as  in  a  state  of  nature;  and  that  such  natural  flow  or  passage  of  the 
waters  cannot  be  interrupted  or  prevented  by  the  servient  owner, 
to  the  detriment  or  injury  of  the  estate  of  the  dominant  or  anj^  other 
proprietor.  The  doctrine  is  repudiated  in  some  of  the  American 
courts,  and  it  is  asserted  that  the  doctrine  of  the  common  law  is, 
that  there  exists  no  such  natural  easement  or  servitude  in  favor  of 
the  owner  of  the  superior  or  higher  ground  as  to  mere  surface  water; 
and  that  the  owner  of  the  inferior  or  lower  estate  may,  if  he  choose, 
lawfully  obstruct  or  hinder  the  natural  flow  of  such  water  thereon, 
and,  in  so  doing,  may  turn  the  same  back  upon,  or  off,  or  to,  or  over 
the  lands  of  other  proprietors,  without  liability  for  injuries  occurring 
from  such  obstruction  or  diversion.  3  Wait's  Actions  and  Defenses, 


CHAP.  III.]  NININGER   V.    NORWOOD.  61^ 

711;  Angell  on  Water-Courses,  §§  108  et  seq.  (7th  ed.)  In  England, 
the  rule  seems  firmly  adhered  to,  that  lands  are  burdened  with  the 
servitude  of  receiving  and  discharging  all  waters  that  naturally  flow 
down  to  them  from  the  lands  of  an  adjoining  proprietor  upon  a  higher 
level.  Any  interference  with,  or  obstruction  of  the  servitude  by  the 
lower  owner,  to  the  injury  of  the  owTier  of  the  dominant  estates, 
subjects  him  to  liability  for  the  resulting  damage.  Wood  on  Nui- 
sances, 422.  This  rule,  with  an  exception,  perhaps,  as  to  towm  or  city 
lots,  is  followed  generally  in  this  country.  Gillham  v.  Madison  R.R. 
Co.,  49  111.  484;  Adams  v.  Walker,  34  Conn.  466;  Kauffman  v,  Griese- 
mer,  26  Perm.  St.  407;  Miller  v.  Lauhach,  47  lb.  154;  Oghurn  v. 
Conner,  46  Cal.  346;  Butler  v.  Peck,  16  Ohio  St.  334;  Watts  v.  CliSion, 
22  76.  247;  Swett  v.  Cutis,  50  N.H.  439. 

In  the  very  carefully  considered  case  of  Butler  v.  Peck,  said  Brink- 
ERHOFF,  J.,  "The  principle  seems  to  be  established  and  indisput- 
able, that  when  two  parcels  of  land,  belonging  to  different  owaiers, 
lie  adjacent  to  each  other,  and  one  parcel  lies  lower  than  the  other, 
the  lower  one  owes  a  servitude  to  the  upper,  to  receive  the  water 
which  naturally  runs  from  it,  providing  the  industry  of  man  has  not 
been  used  to  create  the  servitude.  Or,  in  other  words  more  familiar  to 
the  students  of  the  common  law,  the  owner  of  the  upper  parcel  of 
land  has  a  natural  easement  in  the  lower  parcel,  to  the  extent  of  the 
natural  flow  of  water  from  the  upper  parcel  to  and  upon  the  lower." 
And  again  it  was  said:  "The  natural  easement  arises  out  of  the  rela- 
tive altitudes  of  adjacent  surfaces  as  nature  made  them,  and  these 
altitudes  may  not  be  artificially  changed  to  the  damage  of  an  adja- 
cent proprietor."  In  Martin  v.  Riddle,  reported  in  a  note  to  Kauff- 
man V.  Griesemer,  supra,  it  is  said  by  Lowrie,  J.:  "Where  two  fields 
adjoin,  and  one  is  lower  than  the  other,  the  lower  must  necessarily 
be  subject  to  all  the  natural  flow  of  water  from  the  upper  one.  The 
inconvenience  arises  from  its  position,  and  is  usualty  more  than 
compensated  by  other  circumstances;  hence  the  owner  of  the  lower 
gi'ound  has  no  right  to  erect  embankments,  whereby  the  natural 
flow  of  the  water  from  the  upper  gi-ound  shall  be  stopped;  nor  has 
the  owner  of  the  upper  ground  a  right  to  make  any  excavations  or 
drains,  by  which  the  flow  of  water  is  diverted  from  its  natural  chan- 
nel, and  a  new  channel  made  on  the  lower  ground;  nor  can  he  col- 
lect into  one  channel  waters  usually  flowing  off  into  his  neighbor's 
fields  by  several  channels,  and  thus  increase  the  waste  upon  the  lower 
fields."  And  in  the  case  of  Kauffman  v.  Griesemer,  Woodward,  J., 
said:  "Almost  the  whole  law  of  water-courses  is  founded  in  the 
maxim  of  the  common  law,  Aqua  currit,  et  debet  currere.  Because 
water  is  descendible  by  nature,  the  owner  of  a  dominant  or  superior 
heritage  has  an  easement  in  the  servient  or  inferior  tenement,  for  the 
discharge  of  all  waters  which  by  nature  rise  in,  or  flow  or  fall  upon 
the  superior." 


C18  BAEKLEY    V.    WILCOX.  [CHAP.  Ill, 

These  parties,  complainant  and  defendants,  acquired  the  lands 
with  full  knowledge  of  their  natural  relations,  and  that  from  the  one 
parcel,  because  of  its  altitude,  and  because  water  is  in  its  nature  de- 
scendible, the  bursts  of  water  from  the  creek  in  freshets,  and  the 
accumulations  of  rainwater,  had  and  found  a  natural  outlet  over 
the  immediately  adjacent  lower  lands.  Whatever  of  advantage  to 
the  one,  or  of  inconvenience  to  the  other,  resulted  from  the  natural 
formation  of  the  lands,  entered  into  the  consideration  of  the  acqui- 
sition; and  there  can  be  no  justice  in  suffering  one  party  to  increase 
his  advantages,  or  to  lessen  his  inconveniences,  at  the  expense  and 
to  the  injury  of  the  other.  There  cannot  be  interminable  contests 
between  them  as  to  the  lessening  or  increasing  the  burdens  nature 
has  imposed.  Either  may  improve  his  own  parcel,  so  long  as  he 
keeps  within  a  just  application  of  the  maxim,  Sic  utere  tuo,  ut  laedas 
non  alienum.  The  demurrer  to  the  bill  was  not  well  taken,  and  was 
properly  overruled. 

Note.  —  See  McDaniel  v.  Cummings,  83  Cal.  515;  Gillham  v. 
Madison  County  R.R.  Co.,  49  111.  484;  Foley  v.  Godchaux,  48  La. 
466;  Baltimore  R.R.  Co.  v.  Hackett,  87  Md.  224;  Boyd  v.  Conklin, 
54  Mich.  583;  Porter  v.  Durham,  74  N.C.  767;  Butler  v.  Peck,  16 
Ohio  St.  334;  Kauffman  v.  Griesemer,  26  Pa.  407;  McGehee  v.  Tide- 
water Ry.  Co.,  108  Va.  508. 


BARKLEY  v.  WILCOX. 

86  N.Y.  140.     1881. 

Andrews,  J.  This  is  not  the  case  of  a  natural  water-course.  A 
natural  water-course  is  a  natural  stream,  flowing  in  a  defined  bed  or 
channel,  with  banks  and  sides,  having  permanent  sources  of  supply. 
It  is  not  essential,  to  constitute  a  water-course,  that  the  flow  should 
be  uniform  or  uninterrupted.  The  other  elements  existing,  a  stream 
does  not  lose  the  character  of  a  natural  water-course,  because  in 
times  of  drought  the  flow  may  be  diminished  or  temporarily  sus- 
pended. It  is  sufficient  if  it  is  usually  a  stream  of  running  water. 
Angell,  Water-Courses,  §4;  Luther  v.  The  Winnisimmet  Co.,  9  Cush. 
171. 

The  parties  in  this  case  own  adjacent  lots  on  a  street  near  a  village, 
but  not  within  the  corporate  limits.  The  findings  are,  that  the 
natural  formation  of  the  land  was  such  that  surface  water  from  rains 
and  melting  snows  would  descend  from  different  directions,  and 
accumulate  in  the  street  in  front  of  the  plaintiff's  lot,  in  varying 
quantities  according  to  the  nature  of  the  seasons,  sometimes  extend- 
ing quite  back  upon  the  plaintiff's  lot;  that  in  times  of  unusual 


CHAP.  III.]  BAEKLEY    V.    WILCOX.  619 

amount  of  rain,  or  thawing  snow,  such  accumulations,  before  the 
grading  of  the  defendant's  lot,  were  accustomed  to  run  off  over  a 
natural  depression  in  the  surface  of  the  land  across  the  defendant's 
lot,  and  thence  over  the  lands  of  others,  to  the  Neversink  River;  that 
when  the  amount  of  water  was  small,  it  would  soak  away  in  the 
ground;  that  in  1871  the  defendant  built  a  house  on  his  lot,  and 
used  the  earth  excavated  in  digging  the  cellar  to  improve  and  better 
the  condition  of  his  lot,  by  grading  and  filling  up  the  lot  and  sidewalk 
in  front  of  it  about  twelve  inches,  and  on  a  subsequent  occasion  he 
filled  in  several  inches  more;  that  in  the  spring  of  1875,  there  was  an 
unusually  large  accumulation  of  water  from  melting  snow  and  rains 
in  front  of  and  about  the  plaintiff's  premises,  so  that  the  water  ran 
into  the  cellar  of  his  house,  and  occasioned  serious  damage ;  that  the 
filling  in  of  the  defendant's  lot  had  the  effect  to  increase  the  accumu- 
lation of  water  on  the  plaintiff's  lot,  and  contributed  to  the  injur}'  to 
his  property. 

There  was  no  natural  water-course  over  the  defendant's  lot.  The 
surface  water,  by  reason  of  the  natural  features  of  the  gi'ound  and 
the  force  of  gravity,  when  it  accumulated  beyond  a  certain  amount 
in  front  of  the  plaintiff's  lot,  passed  upon  and  over  the  lot  of  the 
defendant.  The  discharge  was  not  constant  or  usual,  but  occasional 
only.  There  was  no  channel  or  stream,  in  the  usual  sense  of  those 
terms.  In  an  undulating  country,  there  must  always  be  valleys  and 
depressions,  to  which  water,  from  rains  or  snow,  will  find  its  way 
from  the  hillsides,  and  be  finally  discharged  into  some  natural  outlet. 
But  this  does  not  constitute  such  valleys  or  depressions,  water- 
courses. Whether,  when  the  premises  of  adjoining  owners  are  so 
situated  that  surface  water  falling  upon  one  tenement  naturally 
descends  to  and  passes  over  the  other,  the  incidents  of  a  water- 
course apply  to  and  govern  the  rights  of  the  respective  parties,  so 
that  the  owner  of  the  lower  tenement  may  not,  even  in  good  faith 
and  for  the  purpose  of  improving  or  building  upon  his  own  land, 
obstruct  the  flow  of  such  water  to  the  injury  of  the  owner  above,  is 
the  question  to  be  determined  in  this  case.  This  question  does  not 
seem  to  have  been  authoritatively  decided  in  this  State.  It  was 
referred  to  by  Denio,  Ch.J.,  in  Goodale  v.  Tidtle,  29  N.Y.  467,  where 
he  said:  "And  in  respect  to  the  running  off  of  surface  water  caused 
by  rain  or  snow,  I  know  of  no  principle  which  will  prevent  the  owner 
of  land  from  filling  up  the  wet  and  marshy  places  on  his  own  soil, 
for  its  amelioration  and  his  own  advantage,  because  his  neighbor's 
land  is  so  situated  as  to  be  incommoded  by  it.  Such  a  doctrine 
would  militate  against  the  well-settled  rule,  that  the  owner  of  land 
has  full  dominion  over  the  whole  space  above  and  below  the  surface." 
The  case  in  which  these  observations  were  made  did  not  call  for  the 
decision  of  the  question,  but  they  show  the  opinion  of  a  great  judge 
upon  the  point  now  in  judgment.  Similar  views  have  been  expressed 


620  BARKLEY    V.    WILCOX.  [CHAP.  III. 

in  subsequent  cases  in  this  court,  although  in  none  of  them,  it  seems, 
was  the  question  before  the  court  for  decision.  Vanderwiele  v.  Taylor, 
65  N.Y.  341;  Lynch  v.  The  Mayor,  76  id.  60.  The  question  has  been 
considered  by  courts  in  other  States,  and  has  been  decided  in  differ- 
ent ways.  In  some,  the  doctrine  of  the  civil  law  has  been  adopted 
as  the  rule  of  decision.  By  that  law,  the  right  of  drainage  of  surface 
waters,  as  between  owners  of  adjacent  lands  of  different  elevations, 
is  governed  by  the  law  of  nature.  The  lower  proprietor  is  bound  to 
receive  the  waters  which  naturally  flow  from  the  estate  above,  pro- 
vided the  industry  of  man  has  not  created  or  increased  the  servitude. 
Corp.  Jur.  Civ.  39,  tit.  3,  §§  2,  3,  4,  5;  Domat  [Cush.  ed.]  616;  Code 
Napoleon,  art.  640;  Code  Louisiana,  art.  656.  The  courts  of  Penn- 
sylvania, Illinois,  California,  and  Louisiana  have  adopted  this  rule, 
and  it  has  been  referred  to  with  approval  by  the  courts  of  Ohio  and 
Missouri.  Martin  v.  Riddle,  26  Penn.  St.  415;  Kaufman  v.  Griese- 
mer,  id.  407;  Gillham  v.  Madison  Co.  R.R.  Co.,  49  111.  484;  Gormley 
V.  Sanford,  52  id.  158;  Oghurnw.  Connor,  46  Cal.  346;  Delahoussaye 
V.  Judice,  13  La.  Ann.  587;  Hays  v.  Hays,  19  La.  351;  Butler  v.  Peck, 
16  Ohio  St.  334;  Laumier  v.  Francis,  23  Mo.  181.  On  the  other  hand, 
the  courts  of  Massachusetts,  New  Jei*sey,  New  Hampshire,  and  Wis- 
consin have  rejected  the  doctrine  of  the  civil  law,  and  hold  that  the 
relation  of  dominant  and  servient  tenements  does  not  by  the  com- 
mon law  apply  between  adjoining  lands  of  different  owners,  so  as  to 
give  the  upper  proprietor  the  legal  right,  as  an  incident  of  his  estate, 
to  have  the  surface  water  falling  on  his  land  discharged  over  the  land 
of  the  lower  proprietor,  although  it  naturally  finds  its  way  there;  and 
that  the  lower  proprietor  may  lawfully,  for  the  improvement  of  his 
estate  and  in  the  course  of  good  husbandry,  or  to  make  erections 
thereon,  fill  up  the  low  places  on  his  land,  although  by  so  doing  he 
obstructs,  or  prevents,  the  surface  water  from  passing  thereon  from 
the  premises  above,  to  the  injury  of  the  upper  proprietor.  Luther  v. 
The  Winnisimmet  Co.,  9  Cush.  171;  Parks  v.  Newhury-port,  10  Gray, 
28;  Dickinson  v.  Worcester,  7  Allen,  19;  Gannon  v.  Hargadon,  10  id. 
106;  Bowlsby  v.  Speer,  2  Vroom,  351;  Pettigrew  v.  Evansville,  25  Wis. 
223;  Hoyt  v.  Hudson,  27  id.  656;  Swett  v.  Cutts,  50  N.H.  439.  It  may 
be  observed  that  in  Pennsylvania,  house  lots  in  towns  and  cities 
seem  to  be  regarded  as  not  subject  to  the  rule  declared  in  the  other 
cases  in  that  State,  in  respect  to  surface  drainage.  Bentz  v.  Arm- 
strong, 8  Watts  &  S.  40.  And  in  Livingston  v.  McDonald,  21  "Iowa, 
160,  the  court,  in  an  opinion  by  Dillon,  J.,  after  stating  the  civil  law 
doctrine,  say,  that  it  may  be  doubted  whether  it  will  be  adopted  by 
the  common-law  courts  of  this  country,  so  far  as  to  preclude  the 
lower  owner  from  making  in  good  faith  improvements,  which  would 
have  the  effect  to  prevent  the  water  of  the  upper  estate  from  flowing 
or  passing  away.  Professor  Washburn  states  that  the  prevailing 
doctrine  seems  to  be  that  if  for  the  purposes  of  improving  and  culti- 


CHAP.  III.]  BARKLEY    V.    WILCOX.  621 

vating  his  land,  a  land-owner  raises  or  fills  it,  so  that  the  water  which 
falls  in  rain  or  snow  upon  an  adjacent  owner's  land,  and  which  for- 
merly flowed  on  to  the  first  mentioned  parcel,  is  prevented  from  so 
doing,  to  the  injury  of  the  adjacent  parcel,  the  owner  of  the  latter  is 
without  remedy,  since  the  other  party  has  done  no  more  than  he  had 
a  legal  right  to  do.  Wash,  on  Easements  [2d  ed.]  431. 

Upon  this  state  of  the  authorities,  we  are  at  liberty  to  adopt  such 
rule  on  the  subject  as  we  may  deem  most  consonant  with  the  de- 
mands of  justice,  having  in  view  on  the  one  hand  individual  rights, 
and  on  the  other  the  interests  of  society  at  large.  Upon  consideration 
of  the  question,  we  are  of  opinion  that  the  rule  stated  by  Dexio, 
Ch.J.,  in  Goodale  v.  Tattle,  is  the  one  best  adapted  to  our  condition, 
and  accords  with  public  policy,  while  at  the  same  time  it  does  not 
deprive  the  owner  of  the  upper  tenement  of  any  legal  right  of  prop- 
erty. The  maxim,  aqua  currit  et  debet  currere  ut  currere  solehat,  ex- 
presses the  general  law  which  governs  the  rights  of  owners  of  prop- 
erty on  water-courses.  The  owners  of  land  on  a  water-course  are 
not  owners  of  the  v/ater  which  flows  in  it.  But  each  owner  is  entitled, 
by  virtue  of  his  ownership  of  the  soil,  to  the  reasonable  use  of  the 
water  as  it  passes  his  premises,  for  domestic  and  other  uses,  not  in- 
consistent with  a  like  reasonable  use  of  the  stream  by  owners  above 
and  below  him.  Such  use  is  incident  to  his  right  of  property  in  the 
soil.  But  he  cannot  divert,  or  unreasonably  obstruct  the  passage  of 
the  water,  to  the  injury  of  other  proprietors.  These  familiar  princi- 
ples are  founded  upon  the  most  obvious  dictates  of  natural  justice 
and  public  policy.  The  existence  of  streams  is  a  permanent  provision 
of  nature,  open  to  observation  by  every  purchaser  of  land  through 
which  they  pass.  The  multiplied  uses  to  which  in  civilized  society 
the  water  of  rivers  and  streams  is  applied,  and  the  wide  injury  which 
may  result  from  an  unreasonable  interference  with  the  order  of 
nature,  forbid  an  exclusive  appropriation  by  any  indi\'idual,  of  the 
water  in  a  natural  water-course,  or  any  unreasonable  interruption 
in  the  flow.  It  is  said,  that  the  same  principle  of  following  the  order 
of  nature  should  be  applied  between  coterminous  proprietors,  in 
determining  the  right  of  mere  surface  drainage.  But  it  is  to  be  ob- 
served, that  the  law  has  always  recognized  a  wide  distinction  be- 
tween the  right  of  an  owner  to  deal  with  surface  water  falling  or 
collecting  on  his  land,  and  his  right  in  the  water  of  a  natural  water- 
course. In  such  water,  before  it  leaves  his  land  and  becomes  part 
of  a  definite  water-course,  the  owner  of  the  land  is  deemed  to  have 
an  absolute  property,  and  he  may  appropriate  it  to  his  exclusive  use, 
or  get  rid  of  it  in  any  way  he  can,  provided  only  that  he  does  not 
cast  it  by  drains,  or  ditches,  upon  the  land  of  his  neighbor;  and  he 
may  do  this,  although  by  so  doing  he  prevents  the  water  reaching  a 
natural  water-course,  as  it  formerly  did,  thereby  occasioning  injury 
to  mill-owners  or  other  proprietors  on  the  stream.  So  also  he  may,  by 


622  BARKLEY    V.    WILCOX.  [cHAP.  III. 

digging  on  his  own  land,  intercept  the  percolating  waters  which  sup- 
ply his  neighbor's  spring.  Such  consequential  injury  gives  no  right 
of  action.  Acton  v.  Blundell,  12  M.  &  W.  324;  Rawstron  v.  Taylor,  11 
Exch.  369;  Phelps  v.  Nowlen,  72  N.Y.  39.  Now  in  these  cases  there 
is  an  interference  with  natural  laws.  But  those  laws  are  to  be  con- 
strued in  connection  with  social  laws  and  the  laws  of  property.  The 
interference  in  these  cases  with  natural  laws  is  justified,  because  the 
general  law  of  society  is,  that  the  owner  of  land  has  full  dominion 
over  what  is  above,  upon  or  below  the  surface,  and  the  owner  in 
doing  the  acts  supposed  is  exercising  merely  a  legal  right.  The  owner 
of  wet  and  spongy  land  cannot,  it  is  true,  by  drains  or  other  artificial 
means,  collect  the  surface  water  into  channels,  and  discharge  it  upon 
the  land  of  his  neighbor  to  his  injury.  This  is  alike  the  rule  of  the 
civil  and  common  law.  Corp.  Jur.  Civ.  39,  tit.  3,  §§  2,  3,  4,  5; 
Noonan  v.  City  of  Albany,  79  N.Y.  475;  Miller  v.  Laubach,  47  Penn. 
St.  154.  But  it  does  not  follow,  we  think,  that  the  owner  of  land, 
which  is  so  situated  that  the  surface  waters  from  the  lands  above 
naturally  descend  upon  and  pass  over  it,  may  not  in  good  faith,  and 
for  the  purpose  of  building  upon  or  improving  his  land,  fill  or  grade 
it,  although  thereby  the  water  is  prevented  from  reaching  it,  and  is 
retained  upon  the  lands  above.  There  is  a  manifest  distinction  be- 
tween casting  water  upon  another's  land  and  preventing  the  flow  of 
surface  water  upon  your  own.  Society  has  an  interest  in  the  cultiva- 
tion and  improvement  of  lands,  and  in  the  reclamation  of  waste 
lands.  It  is  also  for  the  public  interest  that  improvements  shall  be 
made,  and  that  towns  and  cities  shall  be  built.  To  adopt  the  principle 
that  the  law  of  nature  must  be  observed  in  respect  to  surface  drain- 
age, would,  we  think,  place  undue  restriction  upon  industry,  and 
enterprise,  and  the  control  by  an  owner  of  his  property.  Of  course 
in  some  cases  the  opposite  principle  may  cause  injury  to  the  upper 
proprietor.  But  the  question  should,  we  think,  be  determined  largely 
upon  considerations  of  public  policy  and  general  utilit3^  Which  rule 
will,  on  the  whole,  best  subserve  the  public  interests,  and  is  most  rea- 
sonable in  practice?  For  the  reasons  stated,  we  think  the  rule  of  the 
civil  law  should  not  be  adopted  in  this  State.  The  case  before  us  is 
an  illustration  of  the  impolicy  of  following  it.  Several  house  lots 
(substantially  village  lots)  are  crossed  by  the  depression.  They  must 
remain  unimproved,  if  the  right  claimed  by  the  plaintiff  exists.  It  is 
better,  we  think,  to  establish  a  rule  which  will  permit  the  reclamation 
and  improvement  of  low  and  waste  lands,  to  one  which  will  impose 
upon  them  a  perpetual  servitude,  for  the  purpose  of  drainage,  for  the 
benefit  of  upper  proprietors.  We  do  not  intend  to  say,  that  there  may 
not  be  cases  which,  owing  to  special  conditions,  and  circumstances, 
should  be  exceptions  to  the  general  rule  declared.  But  this  case  is 
within  it,  and  we  think  the  judgment  below  should  be  affirmed. 
All  concur.  Judgment  affirmed. 


I 


CHAP.  III.]  ACTON   V.    BLUNDELL.  623 

Note.  —  See  Jackson  v.  Keller,  95  Ark.  242;  Chadeayne  v  Robin- 
son, 55  Conn.  345;  Benthall  v.  Seifert,  77  Ind.  302;  Paola  v.  Garman, 
80  Kan.  702;  Bangor  v.  Lansil,  51  Me.  521;  Gannon  v.  Hargadon, 
10  All.  (Mass.)  106;  Rowe  v.  ^f.  Paul  Ry.  Co.,  41  Minn.  384;  Cox  v. 
Hannibal  R.R.  Co.,  174  Mo.  588;  Arthur  v.  Glover,  82  Neb.  528; 
Franklin  v.  Durgee,  71  N.H.  186;  Jessup  v.  Bamford  Co.,  66  N.J.L, 
641;  Chicago  Ry.  Co.  v.  Groves,  20  Okl.  101;  Lawton  v.  ;Soi/i/i  Bound 
R.R.  Co.,  61  S.C.  548;  5eard  v.  Murphy,  37  Vt.  99;  Cass  v.  DicA^s, 
14  Wash.  75;  i7o?/^  v.  Hudson,  27  Wis.  656;  TFaZ/cer  v.  New  Mexico 
R.R.  Co.,  165  U.S.  593. 


ACTON  y.   BLUNDELL. 

12  M.  &  W.  324.     1843. 

TiNDAL,  C.J.  The  question  raised  before  us  on  this  bill  of  excep- 
tions is  one  of  equal  novelty  and  importance.  The  plaintiff  below, 
who  is  also  the  plaintiff  in  error,  in  his  action  on  the  case  declared  in 
the  first  count  for  the  disturbance  of  his  right  to  the  water  of  cer- 
tain underground  springs,  streams,  and  watercourses,  which,  as  he 
alleged,  ought  of  right  to  run,  flow,  and  percolate  into  the  closes  of 
the  plaintiff,  for  supplying  certain  mills  with  water;  and  in  the  sec- 
ond count  for  the  draining  off  the  water  of  a  certain  spring  or  well 
of  water  in  a  certain  close  of  the  plaintiff,  by  reason  of  the  possession 
of  which  close,  as  he  alleged,  he  ought  of  right  to  have  the  use,  bene- 
fit, and  enjoyment  of  the  water  of  the  said  spring  or  well  for  the  con- 
venient use  of  his  close.  The  defendants  by  their  pleas  traversed  the 
rights  in  the  manner  alleged  in  those  counts  respectively.  At  the 
trial  the  plaintiff  proved,  that,  within  twenty  years  before  the  com- 
mencement of  the  suit,  viz.  in  the  latter  end  of  1821,  a  former  owner 
and  occupier  of  certain  land  and  a  cotton-mill,  now  belonging  to  the 
plaintiff,  had  sunk  and  made  in  such  land  a  well  for  raising  water  for 
the  working  of  the  mill;  and  that  the  defendants,  in  the  j^ear  1837, 
had  sunk  a  coal-pit  in  the  land  of  one  of  the  defendants  at  about  three- 
quarters  of  a  mile  from  the  plaintiff's  well,  and  about  three  years 
after  sunk  a  second  at  a  somewhat  less  distance ;  the  consequence  of 
which  sinkings  was,  that,  by  the  first,  the  supply  of  water  was  con- 
siderably diminished,  and  by  the  second  was  rendered  altogether 
insufficient  for  the  purposes  of  the  mill.  The  learned  judge  before 
whom  the  cause  was  tried  directed  the  jury,  that,  if  the  defendants 
had  proceeded  and  acted  in  the  usual  and  proper  manner  on  the  land, 
for  the  purpose  of  working  and  winning  a  coal-mine  therein,  they 
might  lawfully  do  so,  and  that  the  plaintiff's  evidence  was  not  suffi- 
cient to  support  the  allegations  in  his  declaration  as  traversed  by 
the  second  and  third  pleas.   Against  this  direction  of  the  judge  the 


624  ACTON    V.    BLrNDELL.  [cHAP.  III. 

counsel  for  the  plaintiff  tendered  the  bill  of  exceptions  which  has 
been  argued  before  us.  And  after  hearing  such  argument,  and  con- 
sideration of  the  case,  we  are  of  opinion  that  the  direction  of  the 
learned  judge  was  correct  in  point  of  law. 

The  question  argued  before  us  has  been  in  substance  this :  whether 
the  right  to  the  enjoyment  of  an  underground  spring,  or  of  a  well 
supplied  by  such  underground  spring,  is  governed  by  the  same  rule 
of  law  as  that  which  applies  to,  and  regulates,  a  watercourse  flowing 
on  the  surface. 

The  rule  of  law  which  governs  the  enjojTnent  of  a  stream  flowing 
in  its  natural  course  over  the  surface  of  land  belonging  to  different 
proprietors  is  well  established ;  each  proprietor  of  the  land  has  a  right 
to  the  advantage  of  the  stream  flowing  in  its  natural  course  over 
his  land,  to  use  the  same  as  he  pleases,  for  any  purposes  of  his  own, 
not  inconsistent  with  a  similar  right  in  the  proprietors  of  the  land 
above  or  below;  so  that,  neither  can  any  proprietor  above  diminish 
the  quantity  or  injure  the  quality  of  the  water  which  would  other- 
wise naturally  descend,  nor  can  any  proprietor  below  throw  back 
the  water  without  the  license  or  the  grant  of  the  proprietor  above. 
The  law  is  laid  down  in  those  precise  terms  by  the  Court  of  King's 
Bench  in  the  case  of  Mason  v.  Hill,  5  B.  &  Ad.  1;  2  Nev.  &  M.  747; 
and  substantially  is  declared  by  the  vice-chancellor  in  the  case  of 
Wright  v.  Howard,  1  S.  &  S.  190,  and  such  we  consider  a  correct 
exposition  of  the  law.  And  if  the  right  to  the  enjo>Tnent  of  under- 
ground springs,  or  to  a  well  supplied  thereby,  is  to  be  governed  by 
the  same  law,  then  undoubtedly  the  defendants  could  not  justify 
the  sinking  of  the  coal-pits,  and  the  direction  given  by  the  learned 
judge  would  be  wrong. 

But  we  think,  on  considering  the  grounds  and  origin  of  the  law 
which  is  held  to  govern  running  streams,  the  consequences  which 
would  result  if  the  same  law  is  made  applicable  to  springs  beneath 
the  surface,  and,  lastly,  the  authorities  to  be  found  in  the  books, 
so  far  as  any  inference  can  be  drawn  from  them  bearing  on  the  point 
now  under  discussion,  that  there  is  a  marked  and  substantial  differ- 
ence between  the  two  cases,  and  that  they  are  not  to  be  governed 
by  the  same  rule  of  law. 

The  ground  and  origin  of  the  law  which  governs  streams  running 
in  their  natural  course  would  seem  to  be  this,  that  the  right  enjoyed 
by  the  several  proprietors  of  the  lands  over  which  they  flow  is,  and 
always  has  been,  public  and  notorious:  that  the  enjoyment  has  been 
long  continued  —  in  ordinary  cases,  indeed,  time  out  of  mind  — 
and  uninterrupted;  each  man  knowing  what  he  receives  and  what 
has  always  been  received  from  the  higher  lands,  and  what  he  trans- 
mits and  what  has  alwaj's  been  transmitted  to  the  lower.  The  rule, 
therefore,  either  assumes  for  its  foundation  the  implied  assent  and 
agreement  of  the  proprietors  of  the  different  lands  from  all  ages. 


CHAP.  III.]  ACTON   V.   BLUNDELL.  625 

or  perhaps  it  may  be  considered  as  a  rule  of  positive  law  (which 
would  seem  to  be  the  opinion  of  Fleta  and  of  Blackstone),  the  origin 
of  which  is  lost  by  the  progress  of  time;  or  it  may  not  be  unfitly 
treated,  as  laid  down  by  Mr.  Justice  Story,  in  his  judgment  in  the 
case  of  Tyler  v.  Wilkinson,  in  the  courts  of  the  United  States,  4 
Mason's  (American)  Reports,  401,  as  "an  incident  to  the  land;  and 
that  whoever  seeks  to  found  an  exclusive  use  must  establish  a  right- 
ful appropriation  in  some  manner  known  and  admitted  by  the  law." 
But  in  the  case  of  a  well  sunk  by  a  proprietor  in  his  own  land,  the 
water  which  feeds  it  from  a  neighbouring  soil  does  not  flow  openly 
in  the  sight  of  the  neighbouring  proprietor,  but  through  the  hidden 
veins  of  the  earth  beneath  its  surface:  no  man  can  tell  what  changes 
these  underground  sources  have  undergone  in  the  progress  of  time : 
it  may  well  be,  that  it  is  only  yesterday's  date,  that  they  first  took 
the  course  and  direction  which  enabled  them  to  supply  the  well: 
again,  no  proprietor  knows  what  portion  of  water  is  taken  from  be- 
neath his  own  soil :  how  much  he  gives  originally,  or  how  much  he 
transmits  only,  or  how  much  he  receives :  on  the  contrarj^,  until  the 
well  is  sunk,  and  the  water  collected  by  draining  into  it,  there 
cannot  properly  be  said,  with  reference  to  the  well,  to  be  any  flow  of 
water  at  all.  In  the  case,  therefore,  of  the  well,  there  can  be  no 
ground  for  implying  any  mutual  consent  or  agreement,  for  ages  past, 
between  the  owners  of  the  several  lands  beneath  which  the  under- 
ground springs  may  exist,  which  is  one  of  the  foundations  on  which 
the  law  as  to  running  streams  is  supposed  to  be  built;  nor,  for  the 
same  reason,  can  any  trace  of  a  positive  law  be  inferred  from  long- 
continued  acquiescence  and  submission,  whilst  the  very  existence 
of  the  underground  springs  or  of  the  well  may  be  unknown  to  the 
proprietors  of  the  soil. 

But  the  difference  between  the  two  cases  -with  respect  to  the  con- 
sequences, if  the  same  law  is  to  be  applied  to  both,  is  still  more 
apparent.  In  the  case  of  the  running  stream,  the  owner  of  the  soil 
merely  transmits  the  water  over  its  surface :  he  receives  as  much  from 
his  higher  neighbour  as  he  sends  down  to  his  neighbour  below:  he 
is  neither  better  nor  worse:  the  level  of  the  water  remains  the  same. 
But  if  the  man  who  sinks  the  well  in  his  own  land  can  acquire  by 
that  act  an  absolute  and  indefeasible  right  to  the  water  that  collects 
in  it,  he  has  the  power  of  preventing  his  neighbour  from  making  any 
use  of  the  spring  in  his  own  soil  which  shall  interfere  with  the  enjoy- 
ment of  the  well.  He  has  the  power,  still  further,  of  debarring  the 
owner  of  the  land  in  which  the  spring  is  first  found,  or  through  which 
it  is  transmitted,  from  draining  his  land  for  the  proper  cultivation 
of  the  soil:  and  thus,  by  an  act  which  is  voluntary  on  his  part,  and 
which  may  be  entirely  unsuspected  by  his  neighbour,  he  may  im- 
pose on  such  neighbour  the  necessity  of  bearing  a  heavy  expense, 
if  the  latter  has  erected  machinery  for  the  purposes  of  mining,  and 


626  ACTON    V.    BLUNBELL.  [cHAP.  HI. 

discovers,  when  too  late,  that  the  appropriation  of  the  water  has 
alreadj^  been  made.  Further,  the  advantage  on  one  side,  and  the 
detriment  to  the  other,  may  bear  no  proportion.  The  well  may  be 
sunk  to  supply  a  cottage,  or  a  drinking-place  for  cattle;  whilst  the 
owner  of  the  adjoining  land  may  be  prevented  from  winning  metals 
and  minerals  of  inestimable  value.  And,  lastly,  there  is  no  limit  of 
space  within  which  the  claim  of  right  to  an  underground  spring  can 
be  confined :  in  the  present  case,  the  nearest  coal-pit  is  at  the  distance 
of  half  a  mile  from  the  well :  it  is  obvious  the  law  must  equally  apply 
if  there  is  an  interval  of  many  miles. 

Considering,  therefore,  the  state  of  circumstances  upon  which 
the  law  is  grounded  in  the  one  case  to  be  entirely  dissimilar  from 
those  which  exist  in  the  other;  and  that  the  application  of  the  same 
rule  to  both  would  lead,  in  many  cases,  to  consequences  at  once 
unreasonable  and  unjust;  we  feel  ourselves  warranted  in  holding, 
upon  principle,  that  the  case  now  under  discussion  does  not  fall 
within  the  rule  which  obtains  as  to  surface  streams,  nor  is  it  to  be 
governed  by  analogy  therewith. 

No  case  has  been  cited  on  either  side  bearing  directly  on  the  sub- 
ject in  dispute.  The  case  of  Cooper  v.  Barber,  5  Taunt.  99,  which 
approaches  the  nearest  to  it,  seems  to  make  against  the  proposition 
contended  for  by  the  plaintiff.  In  that  case  the  defendant  had  for 
many  years  penned  back  a  stream  for  the  purpose  of  irrigation,  in 
consequence  of  which  the  water  had  percolated  through  a  porous 
and  gravelly  soil  into  the  plaintiff's  land :  but  as  this  percolation  had 
been  insensible,  and  unknown  by  the  plaintiff  until  the  land  was 
applied  for  building  purposes,  the  court  held,  that  the  defendant 
had  gained  no  right  thereby,  so  as  to  justify  its  continuance.  The 
case  of  Partridge  v.  Scott,  3  M.  &  W.  230,  is  an  authority  to  shew, 
that  a  man,  by  building  a  house  on  the  extremity  of  his  own  land, 
does  not  thereby  acquire  any  right  of  easement,  for  support  or 
otherwise,  over  the  adjoining  land  of  his  neighbour.  It  is  said  in  that 
case,  "he  has  no  right  to  load  his  own  soil,  so  as  to  make  it  require 
the  support  of  that  of  his  neighbour,  unless  he  has  some  grant  to 
that  effect."  It  must  follow,  by  parity  of  reason,  that,  if  he  digs  a 
well  in  his  own  land  so  close  to  the  soil  of  his  neighbour  as  to  re- 
quire the  support  of  a  rib  of  clay  or  of  stone  in  his  neighbour's  land 
to  retain  the  water  in  the  well,  no  action  would  lie  against  the  owner 
of  the  adjacent  land  for  digging  away  such  clay  or  stone,  which  is  his 
own  property,  and  thereby  letting  out  the  water;  and  it  would  seem 
to  make  no  difference  as  to  the  legal  rights  of  the  parties,  if  the  well 
stands  some  distance  within  the  plaintiff's  boundary,  and  the  dig- 
ging by  the  defendant,  w^hich  occasions  the  water  to  flow  from  the 
well,  is  some  distance  within  the  defendant's  boundary;  which  is, 
in  substance,  the  very  case  before  us. 

The  Roman  law  forms  no  rule,  binding  in  itself,  upon  the  sub- 


CHAP,  III.]  MEEKER    V.    EAST   ORANGE.  627 

jects  of  these  realms;  but,  in  deciding  a  case  upon  principle,  where 
no  direct  authority  can  be  cited  from  our  books,  it  affords  no  small 
evidence  of  the  soundness  of  the  conclusion  at  which  we  have  arrived, 
if  it  proves  to  be  supported  by  that  law,  the  fruit  of  the  researches 
of  the  most  learned  men,  the  collective  wisdom  of  ages  and  the 
groundwork  of  the  municipal  law  of  most  of  the  countries  in  Europe. 

The  authority  of  one  at  least  of  the  learned  Roman  lawyers  ap- 
pears decisive  upon  the  point  in  favour  of  the  defendants;  of  some 
others  the  opinion  is  expressed  with  more  obscurity.  In  the  Digest, 
lib.  39,  tit.  3,  De  sequa  et  aquae  pluvise  arcandae,  s.  12,  ''Denique 
Marcellus  scribit,  Cum  eo,  qui  in  suo  fodiens,  vicini  fontem  avertit, 
nihil  posse  agi :  nee  de  dolo  actionem,  et  sane  non  debet  habere ;  si  non 
animo  vicini  nocendi,  sed  suum  agrum  meliorem  faciendi,  id  fecit." 

It  is  scarcely  necessary  to  say,  that  we  intimate  no  opinion  what- 
ever as  to  what  might  be  the  rule  of  law,  if  there  had  been  an  unin- 
terrupted user  of  the  right  for  more  than  the  last  twenty  years;  but, 
confining  ourselves  strictly  to  the  facts  stated  in  the  bill  of  exceptions, 
we  think  the  present  case,  for  the  reasons  above  given,  is  not  to  be 
governed  by  the  law  which  applies  to  rivers  and  flowing  streams, 
but  that  it  rather  falls  within  that  principle,  which  gives  to  the  owner 
of  the  soil  all  that  hes  beneath  his  surface;  that  the  land  immediately 
below  is  his  property,  whether  it  is  solid  rock,  or  porous  ground,  or 
venous  earth,  or  part  soil,  part  water;  that  the  person  who  owns  the 
surface  may  dig  therein,  and  apply  all  that  is  there  found  to  his  own 
purposes  at  his  free  will  and  pleasure;  and  that  if,  in  the  exercise 
of  such  right,  he  intercepts  or  drains  off  the  water  collected  from 
underground  springs  in  his  neighbour's  well,  this  inconvenience  to 
his  neighbour  falls  within  the  description  of  damnum  absque  injurid, 
which  cannot  become  the  ground  of  an  action. 

We  think,  therefore,  the  direction  given  by  the  learned  judge  at 
the  trial  was  correct,  and  that  the  judgment  already  given  for  the 
defendants  in  the  court  below  must  be  affirmed. 

Judgment  affirmed. 


MEEKER  V.   EAST  ORANGE. 

77  N.J.  L.  623.     1909. 

Pitney,  Chancellor.  Plaintiff  brought  two  actions  in  one  of  the 
District  Courts  of  the  city  of  Newark  to  recover  damages  for  the 
diversion  by  the  defendant  of  percolating  underground  water.  In 
each  case  the  District  Court  rendered  judgment  in  favor  of  the  de- 
fendant, and  upon  appeal  to  the  Supreme  Court  the  judgments  were 
affii-med.  By  writs  of  error  the  records  are  brought  here  for  review. 

The  cases  were  submil^^ed  to  the  trial  court  upon  agreed  state- 


628  MEEKER    V.    EAST    ORANGE.  [CHAP.  lU. 

merits  of  fact.  In  one  case  it  is  stipulated  that  plaintiff  owns  and 
occupies  a  farm  of  about  one  hundred  acres,  situate  in  the  valley 
of  Canoe  Brook,  in  the  townships  of  Millburn  and  Livingston,  in 
the  county  of  Essex.  He  is  a  milkman,  and  has  for  a  number  of  years 
used  his  farm  for  the  pasture  and  support  of  his  cows  and  horses. 
Canoe  Brook  and  two  small  streams  tributary  thereto  flow  through 
his  farm.  Upon  the  farm  there  is  also  a  spring,  enclosed  by  a  spring- 
house,  the  water  of  which  has  for  years  been  used  by  the  plaintiff  for 
drinking  purposes  and  for  the  storing  and  keeping  of  his  milk.  His 
cattle  in  pasture  have  for  years  resorted  to  the  brook  and  its  tribu- 
taries for  drinking  water.  The  defendant,  the  city  of  East  Orange, 
under  the  authority  of  ''An  act  to  enable  cities  to  supply  the  in- 
habitants thereof  with  pure  and  wholesome  water,"  approved  April 
21st,  1876,  and  the  acts  supplemental  thereto  and  amendatory 
thereof  (Pamph.  L.,  366;  Gen.  Stat.,  646),  acquired  a  tract  of  land 
containing  about  six  hundred  and  eighty  acres,  situate  in  the  valley 
of  Canoe  Brook  and  in  the  township  of  Millburn,  and  installed 
thereon  a  water  plant  consisting  of  about  twenty  artesian  wells,  sit- 
uate further  down  the  stream  than  plaintiff's  farm  and  distant  up- 
wards of  a  mile  therefrom.  In  the  construction  of  these  wells,  and  of 
the  works,  mains  and  reservoirs  comiected  therewith,  the  city  has 
expended  more  than  $1,000,000.  A  few  years  prior  to  the  commence- 
ment of  the  action  the  cit}^  began  to  take  water  from  the  wells,  and 
has  thus  taken  percolating  underground  water  which,  but  for  its 
interception,  would  have  reached  the  plaintiff's  spring  or  stream. 
No  water  other  than  percolating  water  has  been  taken,  and  no  water 
has  been  taken  out  of  any  surface  stream  or  from  the  spring  of  the 
plaintiff  after  it  (the  water)  has  appeared  upon  the  surface  or  in  any 
surface  spring  or  stream.  In  this  action  the  plaintiff  seeks  damages 
for  the  diversion  of  the  underground  water  that  otherwise  would 
have  reached  his  spring  and  streams. 

In  the  other  action  the  agreed  statement  of  facts  differs  only  in 
that  it  shovv^s  the  existence  upon  plaintiff's  farm  of  a  well  which  for 
years  had  provided  water  for  the  various  purposes  of  the  plaintiff, 
and  that  as  a  result  of  the  defendant's  operations  it  had  ta.ken  per- 
colating underground  water  which  otherwise  would  have  reached 
this  well,  and  had  also  taken  percolating  underground  water  from 
beneath  the  surface  or  soil  of  the  plaintiff's  land  to  such  an  extent 
that  his  crops  will  not  now  grow  as  they  did  formerly,  and  the  tak- 
ing of  such  percolating  water  has  damaged  the  plaintiff's  hay  and 
crops  and  also  has  reduced  the  level  of  the  water  in  his  well.  For  this 
diversion  damages  are  sought. 

The  judgments  under  review  are  based  upon  the  theory  that  the 
city  has  an  absolute  right  to  appropriate  all  percolating  water  found 
beneath  the  land  owned  by  it,  and  to  use  the  water  for  purposes 
entirely  unconnected  v/ith  the  beneficial  use  and  enjojTnent  of  that 


CHAP.  III.]  MEEKER    V.    EAST    ORANGE.  629 

land,  to  the  extent,  indeed,  of  making  merchandise  of  the  water  and 
conveying  it  to  a  distance  for  the  supply  of  the  inhabitants  of  East 
Orange,  and  that  although  by  such  diversion  the  plaintiff's  spring, 
well  and  stream  are  dried  up,  and  his  land  rendered  so  arid  as  to  be 
untillable,  it  is  damnum  absque  injuria. 

The  judgments  are  attacked  upon  the  ground  that  the  law  recog- 
nizes correlative  rights  in  percolating  subterranean  waters;  that  each 
landowner  is  entitled  to  use  such  waters  only  in  a  reasonable  manner 
and  to  a  reasonable  extent  beneficial  to  his  own  land,  and  without 
undue  interference  with  the  rights  of  other  landowners  to  the  like  use 
and  enjojmient  of  waters  percolating  beneath  their  lands,  or  of  water 
courses  fed  therefrom. ' 

The  law  respecting  the  rights  of  property  owners  in  percolating 
subterranean  waters  is  of  comparatively  recent  development,  the 
first  English  decision  bearing  directly  upon  the  question  having  been 
rendered  in  1843.  Acton  v.  Blundell,  12  Mees.  &  W.  324;  13  L.  J. 
Exch.  289.  This  was  followed  by  Chasemore  v.  Richards  (1859),  7 
H.  L.  Cas.  349;  29  L.  J.  Exch.  81;  5  Jur.  (N.S.)  873;  1  Eng.  Rul. 
Cas.  729.  These  cases  may  be  taken  as  establishing  for  that  juris- 
diction the  rule  upon  which  the  judgments  under  review  are  based. 

They  were  followed  by  a  considerable  line  of  decisions  in  this 
country  in  which  the  English  rule  was  adhered  to,  and  which  will 
be  found  discussed  in  Washb.  Easem.,  *363,  *390;  Ang.  Waterc, 
§§  109-114,  and  30  Am.  &  Eng.  Encycl.  L.  (2d  ed.)  310,  313. 

The  soundness  of  the  English  doctrine  was,  however,  challenged 
by  the  Supreme  Court  of  New  Hampshire  in  a  well-considered  case 
decided  in  1862  (Bassett  v.  Salishury  Manufaciuriyig  Co.,  43  N.H. 
569;  3  Am.  L.  Reg.  (N.S.)  223  (O.S.,  vol.  12);  82  Am.  Dec.  179), 
where  it  was  elaborately  reasoned  that  the  doctrine  of  absolute 
cwTiership  is  not  well  founded  in  legal  principles,  and  is  not  so  com- 
mended by  its  practical  application  as  to  require  its  adoption;  that 
the  true  rule  is  that  the  rights  of  each  owner  being  similar,  and  their 
enjoj-ment  dependent  upon  the  action  of  other  landowners,  their 
rights  must  be  correlative  and  subject  to  the  operation  of  the  maxim 
sic  utere,  etc.,  so  that  each  landowner  is  restricted  to  a  reasonable 
exercise  of  his  own  rights  and  a  reasonable  use  of  his  own  property, 
in  view  of  the  similar  rights  of  others.  This  decision  was  followed  by 
Swett  V.  Cutts' (1870),  50  N.H.  439;  9  Am.  Rep.  276;  11  Am.  L.  Reg. 
(N.S.)  11,  where  the  court  again  laid  it  down  that  the  landowner  has 
not  an  absolute  and  unqualified  property  in  all  such  water  as  may  be 
found  in  his  soil,  to  do  what  he  pleases  with  it,  as  with  the  sand  and 
rock  that  form  part  of  the  soil,  but  that  his  right  is  to  make  reason- 
able use  of  it  for  domestic,  agricultural  and  manufacturing  purposes, 
not  trenching  upon  the  similar  rights  of  others. 

The  doctrine  thus  enunciated  has  come  to  be  known  in  the  discus- 
sion of  the  topic  as  the  rule  of  "reasonable  use." 


630  MEEKER    V.    EAST    ORANGE.  [CHAP.  III. 

The  question  as  to  which  of  these  contrary  rules  obtains  in  this 
State  has  not  been  set  at  rest  by  any  previous  adjudication  in  this 
court. 

[The  learned  chancellor  reviewed  the  authorities.] 

A  review  of  the  reasoning  upon  which  the  English  doctrine  respect- 
ing percolating  underground  waters  rests  will  demonstrate,  as  we 
think,  that  this  reasoning  is  unsatisfactory  in  itself  and  inconsistent 
with  legal  principles  otherwise  well  established. 

Thus,  in  Acton  v.  Blundell,  12  Mees.  &  W.  349,  Chief  Justice  Tin- 
DAL,  in  undertaking  to  show  the  inapplicability  to  percolating  waters 
of  the  law  that  governs  running  streams,  declared  that  the  ground 
and  origin  of  the  law  respecting  the  latter  would  seem  to  be  that  the 
right  enjoyed  by  the  several  proprietors  of  the  lands  over  which  they 
flow  is  and  always  has  been  public  and  notorious;  that  the  enjoyment 
has  been  long  continued  and  uninterrupted,  and  therefore  based 
upon  the  implied  assent  and  agreement  of  the  proprietors  of  the 
different  lands  from  all  ages,  while  underground  waters,  being  con- 
cealed from  view,  there  can  be  no  implied  mutual  consent  or  agree- 
ment between  the  owners  of  the  several  lands  respecting  them.  But, 
as  has  been  since  repeatedly  pointed  out,  the  right  of  the  riparian 
owner  to  the  flow  of  a  natural  stream  arises  ex  jure  naturae,  and  not  at 
all  from  prescription  or  presumed  gi'ant  or  acquiescence  arising  from 
long-continued  user.  See  remarks  of  Baron  Parke,  in  Broadbent  v. 
Ramshotham,  as  reported  in  25  L.  J.  Exch.  (at  p.  121),  and  remarks  of 
Lord  Wensleydale  in  Chasemore  v.  Richards,  7  H.  L.  Cas.  (  at  pp. 
382,  383);  29  L.  J.  Exch.  87;  1  Eng.  Rul.  Cas.  752,  753,  and  cases 
cited. 

Again,  in  Acton  v.  Blundell,  12  Mees.  &  W.  351,  the  Chief  Justice 
said:  "If  a  man  w^ho  sinks  a  well  in  his  own  land  can  acquire  bj'  that 
act  an  absolute  and  indefeasible  right  to  the  water  that  collects  in  it, 
he  has  the  power  of  preventing  his  neighbor  from  making  any  use  of 
the  spring  in  his  own  soil  which  shall  interfere  with  the  enjoyment  of 
the  soil."  Obviously,  he  failed  to  note  that  there  is  a  middle  ground 
between  the  existence  of  an  absolute  and  indefeasible  right  and  the 
absence  of  any  right  that  the  law  will  recognize  and  protect.  There  is 
room  for  the  existence  of  qualified  and  correlative  rights  in  both 
landowners. 

The  English  rule  seems  to  be  rested  at  bottom  upon  the  maxim, 
"Cujus  est  solum,  ejus  est  usque  ad  coelum  et  ad  inferos.''  Thus,  in 
Acton  V.  Blundell,  12  Mees.  &  W.  354,  Chief  Justice  Tindal  said 
that  the  case  fell  within  "that  principle  which  gives  to  the  owner  of 
the  soil  all  that  lies  beneath  his  surface;  that  the  land  immediately 
below  is  his  property,  whether  it  is  solid  rock,  or  porous  ground,  or 
venous  earth,  or  part  soil,  part  water;  that  the  person  who  owns  the 
surface  may  dig  therein,  and  apply  all  that  is  there  found  to  his  own 
purposes  at  his  free  will  and  pleasure."  Here  the  impracticability  of 


CHAP.  III.]  MEEKER    V.    EAST    ORANGE.  631 

applying  the  rule  of  absolute  ownership  to  the  fluid,  water,  which  by 
reason  of  its  nature  is  incapable  of  being  subjected  to  such  ownership, 
is  apparently  overlooked.  If  the  owner  of  Whiteacre  is  the  absolute 
proprietor  of  all  the  percolating  water  found  beneath  the  soil,  the 
owner  of  the  neighboring  Blackacre  must,  by  the  same  rule,  have  the 
like  proprietorship  in  his  own  percolating  water.  How,  then,  can  it 
be  consistent  with  the  declared  principle  to  allow  the  owner  of  White- 
acre  to  withdraw,  by  pumping  or  otherwise,  not  only  all  the  percolat- 
ing water  that  is  normalh'  subjacent  to  his  own  soil,  but  also,  and  at 
the  same  time,  the  whole  or  a  part  of  that  which  is  normally  subja- 
cent to  Blackacre?  Where  percolating  water  exists  in  a  state  of  na- 
ture generally  throughout  a  tract  of  land,  whose  parcels  are  held  in 
several  ownership  by  different  proprietors,  it  is,  in  the  nature  of 
things,  impossible  to  accord  to  each  of  these  proprietors  the  absolute 
right  to  withdraw  ad  libitum  all  percolating  water  which  may  be 
reached  by  a  well  or  pump  upon  any  one  of  the  several  lots,  for  such 
withdrawal  by  one  owner  necessarily  interferes  to  some  extent  with 
the  enjoyment  of  the  like  privilege  and  opportunity  by  the  other 
owners. 

Again,  the  denial  of  the  applicability  to  underground  waters  of  the 
general  principles  of  law  that  obtain  with  respect  to  waters  upon  the 
surface  of  the  earth  is  in  part  placed  upon  the  mere  difficulty  of 
proving  the  facts  respecting  water  that  is  concealed  from  view.  But 
experience  has  demonstrated  in  a  multitude  of  cases  that  this  diffi- 
culty is  often  readily  solved.  When  it  is  solved  in  a  given  case,  by 
the  production  of  satisfactory  proof,  this  reason  for  the  rule  at  once 
vanishes. 

It  is  sometimes  said  that  unless  the  English  rule  be  adopted,  land 
owners  will  be  hampered  in  the  development  of  their  property  be- 
cause of  the  uncertainty  that  would  thus  be  thrown  about  their 
rights.  It  seems  to  us  that  this  reasoning  is  wholly  faulty.  If  the 
English  rule  is  to  obtain,  a  man  may  discover  upon  his  own  land 
springs  of  great  value  for  medicinal  purposes  or  for  use  in  special 
forms  of  manufacture,  and  may  invest  large  sums  of  money  upon 
their  development;  yet  he  is  subject  at  any  time  to  have  the  normal 
supply  of  such  springs  wholly  cut  off  by  a  neighboring  landowner, 
who  may,  with  impunity,  sink  deeper  wells  and  employ  more  power- 
ful machinery,  and  thus  wholly  drain  the  sub-surface  water  from  the 
land  of  the  first  discoverer. 

In  the  case  before  us  the  city  of  East  Orange  might  have  its  under- 
f^round  water-supply  cut  off  or  materially  impaired  by  the  establish- 
ment of  deeper  wells  and  more  powerful  pumps  upon  some  neighbor- 
ing tract  —  even  upon  the  tract  owned  by  the  plaintiff. 

In  short,  under  that  rule,  might  literally  makes  right,  and  we  are 
remitted  to  — 


632  MEEKER    V.    EAST    ORANGE.  [CHAP.  III. 

"  The  simple  plan, 
That  they  should  take  who  have  the  power, 
And  they  should  keep  who  can." 

For  a  further  elaboration  of  the  grounds  upon  which  the  "English 
rule"  is  open  to  criticism,  and  upon  which  the  doctrine  of  "reason- 
able user"  of  subterranean  percolating  waters  is  supported,  reference 
may  be  made  to  the  dissenting  opinion  of  Mr.  Justice  Coleridge,  in 
Chasemore  v.  Richards,  2  H.  &  N.  188,  195,  to  the  judgment  of  Lord 
Wensleydale  in  the  House  of  Lords  in  the  same  case,  7  H.  L.  Cas. 
384,  389;  29  L.  J.  Exch.  87,  88;  1  Eng.  Rul.  Cas.  754,  757,  and  to  the 
opinions  in  the  recent  American  cases  above  cited. 

Upon  the  whole  we  are  convinced,  not  only  that  the  authority  of 
the  English  cases  is  gi'eatly  weakened  by  the  trend  of  modern  deci- 
sions in  this  country,  but  that  the  reasoning  upon  which  the  doctrine 
of  "reasonable  user"  rests  is  better  supported  upon  general  principles 
of  law  and  more  in  consonance  with  natural  justice  and  equity. 

We  therefore  adopt  the  latter  doctrine.  This  does  not  prevent  the 
proper  user  by  any  landowner  of  the  percolating  waters  subjacent  to 
his  soil  in  agriculture,  manufacturing,  irrigation  or  otherwise,  nor 
does  it  prevent  any  reasonable  development  of  his  land  by  mining  or 
the  like,  although  the  underground  water  of  neighboring  proprietors 
may  thus  be  interfered  with  or  diverted.  But  it  does  prevent  the 
withdrawal  of  underground  waters  for  distribution  or  sale  for  uses  not 
connected  with  any  beneficial  ownership  or  enjoyment  of  the  land 
whence  they  are  taken,  if  it  results  therefrom  that  the  owner  of 
adjacent  or  neighboring  land  is  interfered  with  in  his  right  to  the 
reasonable  user  of  sub-surface  water  upon  his  land,  or  if  his  wells, 
springs  or  streams  are  thereby  materially  diminished  in  flow,  or  his 
land  is  rendered  so  arid  as  to  be  less  valuable  for  agriculture,  pastur- 
age or  other  legitimate  uses. 

It  follows  that  the  judgments  of  the  District  Court  and  of  the 
Supreme  Court  must  be  reversed. 


SECT.  I.|  LIPSKY    V.    BORGMANN.  633 


CHAPTER  IV. 
FIXTURES. 


SECTION   1. 
INCORPORATION  OF  CHATTELS  INTO  REALTY. 


LIPSKY  V.  BORGMANN. 

52  Wis.  256.     1881. 

The  defendant  levied  execution  on  the  structure  in  question  under 
a  judgment  against  the  plaintiff.  The  question  was  whether  such 
structure  was  real  or  personal  property. 

Orton,  J.  The  circuit  court  having  ruled  and  instructed  the  jury 
that  the  building  was  a  part  of  the  realty,  and  this  being  a  mixed 
question  of  law  and  fact,  it  becomes  necessary  to  review  briefly  the 
evidence  bearing  upon  it. 

There  is  a  dwelling-house  on  the  land,  occupied  by  the  plaintiff 
and  his  family  as  a  residence,  and  used  also  as  a  saloon.  The  building 
in  question  is  erected  on  one  side  of  this  main  building,  and  next  to 
the  saloon,  and  built  there  by  the  plaintiff  for  the  purpose  of  being 
used  in  connection  with  the  saloon  as  a  dancing  hall.  It  is  thirty-two 
feet  square,  the  sills  are  fastened  together  at  the  ends  with  nails  or 
spikes,  the  studding  is  fastened  to  the  sills  in  the  same  way,  and  four 
or  five  feet  apart,  and  on  the  top  of  the  studding  are  fastened  the 
plates  in  the  same  way;  and  the  sills  and  plates  are  thirty-two  feet  in 
length,  and  two  by  eight  or  two  by  ten  inches  square.  The  sills  rest 
at  some  places  on  the  ground,  and  at  other  places  on  cedar  posts 
set  into  the  ground,  and  on  cedar  railroad  ties  and  stones.  A  floor 
is  laid  over  the  whole  space,  in  the  center  of  which  stands  a  post 
eight  feet  high,  and  six  by  eight  inches  square,  from  the  top  of 
which  extend  four  rafters  to  the  plates.  The  roof  is  intended  to  be 
square  and  four-cornered,  and  now  consists  of  brush.  There  is  a 
space  between  the  buildings,  and  in  it  are  constructed  seats  for  the 
musicians,  twelve  feet  long,  upon  cross-pieces  fastened  to  both  build- 
ings, and  a  door  is  intended  to  open  from  the  saloon  into  the  dancing 
hall.  It  is  in  an  unfinished  condition,  but  used  for  the  purpose  in- 
tended; and  it  is  intended  to  be  made  more  complete  and  permanent, 
and  to  permanently  remain,  to  be  used  in  connection  with  the  main 


634  LIPSKY    V.    BORGMANN.  [CHAP,  IV. 

building  for  domestic  purposes,  and,  in  connection  with  the  saloon 
business,  as  a  dancing  hall.  The  testimony  on  behalf  of  the  defendant 
as  to  the  frail  character  of  this  building,  and  the  testimony  offered  by 
him  and  rejected,  as  to  similar  structures  and  how  they  were  re- 
garded, do  not  in  the  least  militate  against  this  statement  of  the 
evidence.  As  the  circuit  court  virtually  took  the  question  from  the 
jury,  and  decided  that  from  this  evidence  this  building  was  a  fixture, 
the  question  here  is,  Would  the  jury  have  been  justified  in  finding 
other^\'ise?  or,  in  other  words,  Would  the  verdict  be  allowed  to  stand, 
on  motion  for  a  new  trial,  if  they  had  so  found?  If  not,  the  circuit 
court  committed  no  error  in  taking  the  question  from  the  jury  and  so 
deciding.  From  the  character,  situation  and  intended  use  of  this 
building,  as  disclosed  by  this  evidence,  there  can  be  no  question  that 
it  was  affixed  to  the  soil  and  is  a  part  of  the  realty.  By  the  current  of 
authorities  it  has  all  the  requisites  to  make  it  such.  It  was  con- 
structed by  the  owner  of  the  land.  It  has  sufficient  actual  physical 
attachment  to  the  main  building  and  the  soil,  and  was  intended  to 
be  permanent,  and  to  be  always  used,  not  only  with  the  main  build- 
ing but  for  similar  purposes,  and  not  intended  ever  to  be  removed. 
To  support  this  ruling,  I  need  only  to  refer  to  some  of  the  late  deci- 
sions of  this  court,  and  in  cases  where  the  facts  were  not  nearly  as 
conclusive  as  in  this  case,  and  yet  the  constructions  were  held  to  be 
fixtures  and  not  personalties.  Huebschmann  v.  McHenry,  29  Wis. 
655;  Kimball  v.  Darling,  32  Wis.  675;  Jenkins  v.  McCurdy,  48  Wis. 
628;  and  Taylor  v.  Collins,  51  Wis.  123.  We  can  find  no  error  in  the 
record. 
By  the  Court.  —  The  judgment  of  the  circuit  court  is  affirmed. 

Note.  —  A  building  "built  on  blocks  set  in  the  surface  of  the 
ground"  was  held  to  be  realty  in  State  Savings  Bank  v.  Kercheval, 
65  Mo.  682. 

Certain  finishing  lumber,  doors,  and  transoms  had  been  placed  in 
an  unfinished  building  for  the  purpose  of  completing  it;  suitable 
openings  for  the  doors  and  transoms  had  been  left  in  the  building, 
and  all  such  material,  including  the  finishing  lumber,  was  necessary 
for  the  completion  of  the  building.  The  court  held  that  such  material 
was  realty.  Rahm  v.  Domayer,  137  Iowa  18.  See,  contra,  Blue  v. 
Gunn,  114  Tenn.  414. 

The  fragments  of  a  building,  blown  down  by  a  tempest,  were  held 
not  to  be  thereby  converted  into  personalty  in  Rogers  v.  Gilinger, 
30  Pa.  185. 

"  When  a  building  is  erected,  prima  facie,  it  is  a  part  of  the  land 
upon  which  it  stands,  and,  in  order  to  rebut  the  presumption  of  law, 
a  state  of  facts  must  be  shown  to  take  it  out  of  the  operation  of  the 
general  rule."  Indianapolis  Ry.  Co.  v.  First  National  Bank,  134 
Ind.  127. 


SECT.  I.]  LAWTON    V.    SALMON.  635 

LAWTON  V.  SALMON. 

1  H.  Bl.  259,  n.    1789. 

In  this  action  of  trover,  brought  by  the  executor  against  the  tenant 
of  the  heir  at  law  of  the  testator,  to  recover  certain  vessels  used  in 
salt-works,  called  salt-pans,  a  case  was  reserved  by  consent,  which 
stated, — 

That  the  testator,  some  years  before  his  death,  placed  the  salt-pans 
in  the  works:  that  they  were  made  of  hammered  iron  and  riveted 
together;  that  they  were  brought  in  pieces  and  might  be  again  re- 
moved in  pieces;  that  they  were  not  joined  to  the  walls,  but  were 
fixed  with  mortar  to  a  brick  floor;  that  there  were  furnaces  under 
them;  that  there  was  a  space  for  the  workmen  to  go  round  them; 
that  there  were  no  rooms  over  them;  but  that  there  were  lodgings  at 
the  end  of  the  wych-houses;  that  they  might  be  removed  without 
injuring  the  buildings,  though  the  salt  works  would  be  of  no  value 
without  them,  which  with  them  were  let  for  81.  per  week. 

Lord  Mansfield.  All  the  old  cases,  some  of  which  are  in  the  year 
books,  and  Brooke's  Abridgment,  agi-ee,  that  whatever  is  connected 
with  the  freehold,  as  wainscot,  furnaces,  pictures  fixed  to  the  wain- 
scot, even  though  put  up  by  the  tenant,  belong  to  the  heir.  But  there 
has  been  a  relaxation  of  the  strict  rule  in  that  species  of  cases,  for  the 
benefit  of  trade,  between  landlord  and  tenant;  that  many  things  may 
now  be  taken  away  which  could  not  be  formerly,  such  as  erections  for 
carrjdng  on  any  trade,  marble  chimney-pieces  and  the  like,  when  put 
up  by  the  tenant.  This  is  no  injury  to  the  landlord,  for  the  tenant 
leaves  the  premises  in  the  same  state  in  which  he  found  them,  and 
the  tenant  is  benefited.  There  has  been  also  a  relaxation  in  another 
species  of  cases  between  tenant  for  fife  and  remainder-man,  if  the 
former  has  been  at  any  expense  for  the  benefit  of  the  estate,  as  by 
erecting  a  fire-engine,  or  anything  else  by  which  it  maj^  be  improved; 
in  such  a  case  it  has  been  determined  that  the  fire-engine  should  go  to 
the  executor,  on  a  principle  of  public  convenience  being  an  encourage- 
ment to  lay  out  money  in  improving  the  estate,  which  the  tenant 
would  not  otherwise  be  disposed  to  do.  The  same  argument  may  be 
applied  to  the  case  of  tenant  for  life  and  remainder-man  as  that  of 
landlord  and  tenant,  namely,  that  the  remainder-man  is  not  injured, 
but  takes  the  estate  in  the  same  condition  as  if  the  thing  in  question 
had  never  been  raised. 

But  I  cannot  find  that  between  heir  and  executor  there  has  been 
any  relaxation  of  this  sort,  except  in  the  case  of  the  cider-mills,  which 
is  not  printed  at  large.  The  present  case  is  very  strong.  The  salt- 
spring  is  a  valuable  inheritance,  but  no  ])rofit  arises  from  it,  unless 
there  is  a  salt-work;  which  consists  of  a  building,  etc.,  for  the  purpose 
of  containing  the  pans,  etc.,  which  are  fixed  to  the  ground.  The  inher- 


636  TOLLES    V.    WINTON.  [CHAP.  IV. 

itance  cannot  be  enjoyed  without  them.  They  are  accessories  neces- 
sary to  the  enjoyment  and  use  of  the  principal.  The  owner  erected 
them  for  the  benefit  of  the  inheritance;  he  could  never  mean  to  give 
them  to  the  executor,  and  put  him  to  the  expense  of  taking  them 
away,  without  any  advantage  to  him,  who  could  only  have  the  old 
materials,  or  a  contribution  from  the  heir  in  heu  of  them.  But  the 
heir  gains  8^  per  week  by  them.  On  the  reason  of  the  thing  therefore 
and  the  intention  of  the  testator,  they  must  go  to  the  heir.  It  would 
have  been  a  different  question  if  the  springs  had  been  let,  and  the 
tenant  had  been  at  the  expense  of  erecting  these  salt-works;  he  might 
very  well  have  said,  "I  leave  the  estate  no  worse  than  I  found  it." 
That,  as  I  stated  before,  would  be  for  the  encouragement  and  con- 
venience of  trade,  and  the  benefit  of  the  estate.  Mr.  Wilbraham  in 
his  opinion  takes  the  distinction  between  executor  and  tenant.  For 
these  reasons  we  are  all  of  opinion  that  the  salt-pans  must  go  to  the 
heir. 

Postea  to  the  defendant. 

Note.  —  In  Nohle  v.  Bosworth,  19  Pick.  (Mass.)  314,  Shaw,  C.J., 
said:  "We  have  no  doubt  that  where  an  owner  erects  a  dye-house  on 
his  own  land,  and  sets  up  dye-kettles  therein,  firmly  secured  in  brick 
work,  they  become  part  of  the  realty,  and  pass  by  a  deed  of  the  land 
without  express  words." 


TOLLES  V.  WINTON. 

63  Conn.  440.     1893. 

Fenn,  J.  This  is  an  appeal  by  the  defendants  from  a  judgment 
rendered  by  the  Court  of  Conmion  Pleas  in  Fairfield  County.  The 
complaint  contained  the  common  counts,  under  which  a  bill  of  par- 
ticulars was  filed,  as  follows:  "To  $500  cash  paid  to  Andrew  L.  Win- 
ton  by  the  plaintiff,  upon  an  agreement  for  the  purchase  of  certain 
real  estate  by  the  plaintiff  from  said  Winton,  which  agreement  the 
said  Winton  improperly  failed  and  refused  to  consummate  and  carry 
out."  The  answer,  a  general  denial,  was  accompanied  by  a  counter- 
claim, which  set  up  a  contract  for  the  conveyance  of  real  estate, 
alleged  a  breach  on  the  part  of  the  plaintiff  and  claimed  SI, 000 
damages.  The  court  found  that  the  plaintiff  did  refuse  to  consum- 
mate the  contract,  for  the  reason  that  the  defendants,  between  the 
date  of  the  contract  and  the  time  fixed  for  the  final  payment  and 
the  delivery  of  the  deed,  removed  from  the  premises  a  steam  engine 
thereon  located,  and  sold  and  delivered  the  same  to  third  parties, 
without  the  knowledge  or  consent  and  against  the  will  of  the  plain- 
tiff.   And  thereupon  the  parties  were  at  issue,  as  to  whether  the 


SECT.  I.]  TOLLES  V.    WINTON.  637 

removal  of  said  engine  from  the  premises  legally  justified  the  plaintiff 
in  refusing  to  consummate  the  contract,  the  plaintiff  claiming  that 
the  engine  was  a  part  of  the  realty,  which  claim  the  court  below 
sustained,  and  the  defendants  claiming  that  it  was  personal  property. 

The  facts  found  by  the  court  in  reference  to  the  engine  were  these : 
"The  land  and  buildings  referred  to  in  the  contract  consisted  of  a 
substantial  three  story  and  basement  brick  edifice,  with  the  ground 
under  and  about  the  same,  situated  on  Middle  Street  in  the  city  of 
Bridgeport.  Said  Winton  had  long  owned  the  premises,  and  about 
five  3'ears  before  the  contract  was  made  and  while  owning  the  same, 
had  occupied  the  first  floor  thereof  as  a  feed  store,  and  in  order  to 
make  the  upper  stories  available  for  tenants  needing  power,  he 
placed  in  the  basement  thereof  an  engine  and  boiler,  and  comiected 
the  same  by  appropriate  shafting  and  belting  with  the  upper  stories, 
and  thereby  supplied  motive  power  to  his  tenants  renting  the  same. 
Said  building  had  not  been  constructed  originally  for  the  use  of 
machinery',  and  the  interior  of  the  building  was  prepared  by  Winton, 
in  the  manner  herein  set  forth,  for  the  reception  of  the  engine  and 
boiler,  together  with  the  belting  and  shafting  necessary  to  convey 
the  power  from  the  cellar  to  the  upper  stories.  No  machinery  was 
prepared  for  the  use  of  power  on  the  first  floor,  occupied  b}^  said 
Winton.  The  engine  stood  three  or  four  feet  from  the  boiler,  and 
about  two  years  before  the  execution  of  the  contract  was  discon- 
nected from  the  boiler  by  unscrewing  couplings,  because  the  tenant 
who  then  occupied  the  upper  part  of  the  building  desired  to  run  a 
small  engine,  placed  in  the  upper  stories,  which  was  run  however  by 
steam  supplied  by  the  boiler  in  the  basement.  The  engine  continued 
so  discomiected  at  the  date  of  the  contract.  The  engine  was  set  up 
and  attached  to  the  property  in  the  following  mamier:  —  a  ca\'ity 
was  dug  in  the  basement  floor,  in  which  a  solid  foundation  of  stone 
and  cement  was  laid,  and  in  this  grouting  were  imbedded  bolts,  which 
extended  upwards,  passing  through  a  timber  placed  on  the  grouting 
in  such  a  manner  and  location  as  to  receive  the  engine.  The  engine 
was  then  placed  on  the  timber,  and  the  bolts  passing  through  plates 
on  the  engine  were  capped  by  nuts  screwed  upon  them,  thus  fasten- 
ing the  engine  firmly  to  the  timber  and  grouting.  By  unscrewing  the 
nuts  the  engine  could  be  lifted  from  the  bolts,  and  removed  without 
other  injury  to  the  building  than  the  loss  of  the  engine,  but  the  bolts 
could  not  be  removed  without  tearing  up  and  destroying  the  grouting. 
The  boiler  was  similarlj'-  fixed  upon  a  foundation  of  gi'outing,  and  a  pit 
was  dug  in  the  basement  floor,  in  connection  with  the  boiler  for  ashes." 

In  deciding  the  question  thus  presented  it  is  unnecessary  to  do 
more  than  to  refer,  and  that  but  briefly,  to  our  own  Connecticut 
cases.  In  Capen  v.  Peckham,  35  Conn.  92,  93,  this  court,  ])y  Park,  J., 
declared  that  while  "no  rule  can  be  found  of  universal  application 
that  clearly  defines  the  line  where  an  article  loses  its  legal  quality  as  a 


638  TOLLES    V.    WINTON.  [CHAP.  IV. 

chattel,  and  assumes  that  of  real  estate,"  yet  ''the  great  weight  of 
authority  is  in  favor  of  the  doctrine  that  to  constitute  a  fixture  it  is 
necessary  that  the  article  should  be  annexed  to  the  freehold,  as  the 
name  itself  imports;  but  there  is  great  diversity  of  opinion  in  relation 
to  the  degree  of  annexation  which  is  essential  for  this  purpose."  It  is 
further  said  that  many  cases  hold  that  such  annexation  "must  be 
permanently  made,  so  much  so  that  the  article  cannot  be  removed 
without  injury  to  the  freehold."  This,  however,  though  declared 
essential  in  a  great  majority  of  cases,  is  not  held  to  be  so  in  all. 
"Millstones  and  water  wheels  used  in  milling  establishments  are 
universally  conceded  to  be  a  part  of  the  realty;  still  many  of  them 
could  be  removed  without  the  least  injury  to  the  freehold."  Farm 
fences  are  also  mentioned.  It  is  then  said  that  another  class  of  cases 
hold  the  true  test  of  a  fixture  to  be  "the  adaptation  of  the  article  to 
the  uses  and  purposes  to  which  the  realty  is  applied,  and  no  regard  is 
had  to  the  character  of  the  annexation."  This  rule  is  declared  to  be 
too  extensive  in  its  application;  and  the  court  then  proceeds  to  sug- 
gest, as  the  nearest  possible  approximation  to  a  rule  of  universal 
application,  one  which  requires  annexation  to  the  freehold,  but  con- 
siders the  degree  and  permanency  in  character  of  such  annexation, 
as  well  as  the  nature  and  adaptation  of  the  article  annexed  to  the  uses 
and  purposes  to  which  that  part  of  the  building  was  appropriated  at 
the  time  the  annexation  was  made,  as  important  solely  by  reason  of 
the  bearing  it  may  have  upon  the  decision  of  the  ultimate  question 
(to  be  determined  from  an  inspection  of  the  property  itself,  and  its 
view,  in  the  light  of  surrounding  circumstances)  whether  a  perma- 
nent accession  to  the  freehold  was  intended  to  be  made  by  the  annex- 
ation of  the  article;  thus  making  such  intention  so  determined  the 
paramount  consideration.  This  case  was  followed  bj^  that  of  Alvord 
Carriage  Mfg.  Co.  v.  Gleason,  36  Conn.  86,  the  same  judge  writing  the 
opinion  and  re-stating  and  applying  the  same  rule  of  intention;  and 
the  court,  by  the  application  of  such  rule,  decided  that  a  factory  bell 
placed  in  a  tower  built  upon  the  factory  for  the  purpose,  and  a  blower 
pipe  conveying  air  from  a  blower  to  a  forge  were  part  of  the  realty. 
Again,  in  Stockwell  v.  Campbell,  39  Conn.  362,  the  same  judge  again 
writing  the  opinion,  this  court,  repeating  and  counting  upon  the  same 
rule,  and  saying  distinctly  that  "physical  annexation"  need  not  be 
such  "as  to  require  any  actual  disruption  for  its  removal,"  instancing 
the  case  of  doors  and  window  blinds,  held  a  portable  hot  air  furnace, 
placed  in  the  cellar  of  a  dwelling  house  for  the  purpose  of  warming 
the  house,  and  set  in  a  pit  prepared  for  it  in  the  bottom  of  the  cellar 
where  it  was  held  in  place  simply  by  its  own  weight,  and  also  the 
smoke  pipe  leading  from  the  furnace  to  the  chimney  of  the  house,  to 
be  parts  of  the  realty.  And  there  are  other  cases  in  this  state  in 
accord  with  these  decisions.  But  no  further  citation  of  authority 
seems  requisite. 


SECT.  I.]  HOLLAND    V.    HODGSON.  639 

Applying  the  rule  thus  established  to  the  case  before  us,  it  seems 
manifest  that,  looking  at  the  property  itself,  taking  into  considera- 
tion the  character  of  its  amiexation  as  recited,  its  nature,  its  adapta- 
tion to  the  uses  and  purposes  to  which  the  building  was  appropriated 
at  the  time  the  annexation  was  made,  and  the  relation  of  the  party 
making  it  to  the  property  to  which  it  was  amiexed  (such  party  being 
the  owner),  a  permanent  accession  to  the  freehold  was  intended  to  be 
made  by  the  annexation  of  the  article,  and  that  by  such  annexation 
it  became  and  was  a  part  of  the  realty. 

There  is  no  error  in  the  judgment  complained  of. 

In  this  opinion  the  other  judges  concurred. 

Note.  —  See,  accord,  Harkness  v.  Sears,  26  Ala.  493;  Sa7ids  v. 
Pfeiffer,  10  Cal.  258;  Brigham  v.  Overstreet,  128  Ga.  447;  Lapham  v, 
Norton,  71  Me.  83;  Winslow  v.  Merchants  Insurance  Co.,  4  Met. 
(Mass.)  306;  Thomas  v.  Davis,  76  Mo.  72;  Despatch  Line  v.  Bellamy 
Company,  12  N.H.  205;  Home  v.  Smith,  105  N.C.  322. 

But  cf.  People  v.  O'Donnel,  202  N.Y.  313;  Vail  v.  Weaver,  132  Pa. 
363;  Padgett  v.  Cleveland,  33  S.C.  339. 


HOLLAND  V.  HODGSON. 

L.  R.  7  C.  P.  328.     1872. 

Blackburn,  J.  In  this  case  George  Mason,  who  was  o\vTier  in 
fee  of  a  mill  occupied  by  him  as  a  worsted  mill,  mortgaged  the  mill 
and  all  fixtures  which  then  were,  or  at  any  time  thereafter  should  be 
set  up  and  affixed  to  the  premises,  in  fee  to  the  plaintiffs.  The  mort- 
gage deed  was  not  registered  as  a  bill  of  sale,  and  Mason,  who  con- 
tinued in  possession,  assigned  all  his  estate  and  effects  to  the  defend- 
ants as  trustees  for  the  benefit  of  his  creditors.  The  defendants  under 
this  last  deed  took  possession  of  everything.  The  plaintiffs  brought 
trover. 

There  is  no  doubt  that  the  general  maxim  of  the  law  is,  that  what  is 
armexed  to  the  land  becomes  part  of  the  land;  but  it  is  very  difficult, 
if  not  impossible,  to  say  with  precision  what  constitutes  an  annexa- 
tion sufficient  for  this  purpose.  It  is  a  question  which  must  depend 
on  the  circumstances  of  each  case,  and  mainly  on  two  circum- 
stances, as  indicating  the  intention,  viz.,  the  degree  of  annexation 
and  the  object  of  the  annexation.  When  the  article  in  question  is 
no  further  attached  to  the  land  than  by  its  own  weight,  it  is  gen- 
erally to  be  considered  a  mere  chattel;  see  Wiltshear  v.  Cottrell, 
1  E.  &  B.  674;  22  L.  J.  (Q.B.)  177,  and  the  cases  there  cited.  But 
even  in  such  a  case,  if  the  intention  is  apparent  to  make  the  articles 
part  of  the  land,  they  do  become  part  of  the  land:  see  D'Eyncourt  v. 


640  HOLLAND    V.    HODGSON.  [CHAP.  IV. 

Gregory,  Law  Rep.  3  Eq.  382.  Thus  blocks  of  stone  placed  one  on  the 
top  of  another,  without  any  mortar  or  cement,  for  the  purpose  of 
forming  a  dry  stone  wall,  would  becom.e  part  of  the  land;  though  the 
sam.e  stones,  if  deposited  in  a  builder's  yard  and  for  convenience'  sake 
stacked  on  the  top  of  each  other  in  the  form  of  a  wall,  would  remain 
chattels.  On  the  other  hand,  an  article  may  be  very  firmly  fi^ed  to 
the  land,  and  yet  the  circumstances  may  be  such  as  to  shew  that  it 
was  never  intended  to  be  part  of  the  land;  and  then  it  does  not  be- 
come part  of  the  land.  The  anchor  of  a  large  ship  must  be  very  firmly 
fixed  in  the  ground  in  order  to  bear  the  strain  of  the  cable,  yet  no  one 
could  suppose  that  it  became  part  of  the  land,  even  though  it  should 
chance  that  the  shipowner  was  also  the  owner  of  the  fee  of  the  spot 
where  the  anchor  was  dropped.  An  anchor  similarly  fixed  in  the  soil 
for  the  purpose  of  bearing  the  strain  of  the  chain  of  a  suspension 
bridge,  would  be  part  of  the  land.  Perhaps  the  true  rule  is,  that 
articles  not  otherwise  attached  to  the  land  than  by  their  own  weight 
are  not  to  be  considered  as  part  of  the  land,  unless  the  circumstances 
are  such  as  to  shew  that  they  were  intended  to  be  part  of  the  land, 
the  onus  of  shewing  that  they  were  so  intended  lying  on  those  who 
assert  that  they  have  ceased  to  be  chattels;  and  that,  on  the  contrary, 
an  article  which  is  affixed  to  the  land  even  slightly  is  to  be  considered 
as  part  of  the  land,  unless  the  circumstances  are  such  as  to  shew  that 
it  was  intended  all  along  to  continue  a  chattel,  the  onus  lying  on 
those  who  contend  that  it  is  a  chattel.  This  last  proposition  seems  to 
be  in  effect  the  basis  of  the  judgm.ent  of  the  Court  of  Common  Pleas 
delivered  by  Maule,  J.,  in  Wilde  v.  Waters,  16  C.  B.  637;  24  L.  J. 
(C.P.)  193.  This,  however,  only  removes  the  difficulty  one  step,  for 
it  still  remains  a  question  in  each  case  whether  the  circumstances  are 
sufficient  to  satisfy  the  onus.  In  some  cases,  such  as  the  anchor  of  the 
ship,  or  the  ordinary  instance  given  of  a  carpet  nailed  to  the  floor  of  a 
room,  the  nature  of  the  thing  sufficiently  shews  it  is  only  fastened  as 
a  chattel  temporarily,  and  not  affixed  permanently  as  part  of  the 
land.  But  ordinary  trade  or  tenant  fixtures  which  are  put  up  with 
the  intention  that  they  should  be  removed  by  the  tenant  (and  so  are 
put  up  for  a  puipose  in  one  sense  only  temporary,  and  certainly  not 
for  the  purpose  of  improving  the  reversionary  interest  of  the  land- 
lord) have  always  been  considered  as  part  of  the  land,  though  sever- 
able by  the  tenant.  In  most,  if  not  all,  of  such  cases  the  reason  why 
the  articles  are  considered  fixtures  is  probably  that  indicated  by 
Wood,  V.C,  in  Boyd  v.  Shorrock,  Law  Rep.  5  Eq.  at  p.  78,  that  the 
tenant  indicates  by  the  mode  in  which  he  puts  them  up  that  he 
regards  them  as  attached  to  the  property  during  his  interest  in  the 
property.  What  we  have  now  to  decide  is  as  to  the  application  of 
these  rules  to  looms  put  up  by  the  owner  of  the  fee  in  the  manner 
described  in  the  case.  In  HellaweU  v.  Eastwood,  6  Ex.  295;  20  L.J. 
(Ex.)  154  (decided  in  1851),  the  facts  as  stated  in  the  report  are,  that 


SECT.  I.]  HOLLAND  V.    HODGSON.  641 

the  plaintiff  held  the  premises  in  question  as  tenant  of  the  defend- 
ants, and  that  a  distress  for  rent  had  been  put  in  by  the  defendants 
under  which  a  seizure  was  made  of  cotton-spinning  machinery 
called  "mules,"  some  of  which  were  fixed  by  screws  to  the  wooden 
floor,  and  some  by  screws  which  had  been  sunk  in  the  stone  floor, 
and  secured  by  molten  lead  poured  into  them.  It  may  be  inferred 
that  the  plaintiff  being  the  tenant  only  had  put  up  those  mules ;  and 
from  the  large  sum  for  which  the  distress  appears  to  have  been  levied 
(2000/.)  it  seems  probable  that  he  was  the  tenant  of  the  whole  mill. 
It  does  not  appear  what  admissions,  if  smy,  were  made  at  the  trial, 
nor  whether  the  court  had  or  had  not  by  the  reservation  power  to 
draw  inferences  of  fact,  though  it  seems  assumed  in  the  judgment  that 
they  had  such  a  power.  Parke,  B.,  in  delivering  the  judgment  of  the 
court,  says,  "This  is  a  question  of  fact  depending  on  the  circum- 
stances of  each  case,  and  principally  on  two  considerations;  first,  the 
mode  of  armexation  to  the  soil  or  fabric  of  the  house,  and  the  extent 
to  which  it  is  united  to  them,  whether  it  can  easily  be  removed 
integre  salve  et  commode  or  not  without  injury  to  itself  or  the 
fabric  of  the  building;  secondly,  on  the  object  and  purpose  of  the 
annexation,  whether  it  was  for  the  permanent  and  substantial  im- 
provement of  the  dwelling,  in  the  language  of  the  civil  law,  perpeiui 
usus  causa,  or  in  that  of  the  year  book,  pour  un  profit  del  inheritance, 
or  merely  for  a  temporary  purpose  and  the  more  complete  enjoyment 
and  use  of  it  as  a  chattel."  It  was  contended  by  Mr.  Field  that  the 
decision  in  Hellawell  v.  Eastwood  had  been  approved  in  the  Queen's 
Bench  in  the  case  of  Turner  v.  Cameron,  Law  Rep.  5  Q.  B.  306.  It  is 
quite  true  that  the  court  in  that  case  said  that  it  afforded  a  true  ex- 
position of  the  law  as  applicable  to  the  particular  facts  upon  which 
the  judgment  proceeded;  but  the  court  expressly  guarded  their 
approval  by  citing  from  the  judgment  delivered  by  Parke,  B.,  the 
facts  upon  which  they  considered  it  to  have  proceeded:  "They  were 
attached  slightly  so  as  to  be  capable  of  removal  without  the  least 
injury  to  the  fabric  of  the  building  or  to  themselves,  and  the  object 
of  the  annexation  was  not  to  improve  the  inheritance,  but  merely  to 
render  the  machines  steadier  and  more  capable  of  convenient  use  as 
chattels."  As  we  have  already  observed,  trade  or  tenant  fixtures 
might  in  one  sense  be  said  to  be  fixed  "merely  for  a  temporary  pur- 
pose"; but  we  cannot  suppose  that  the  Court  of  Exchequer  meant  to 
decide  that  they  were  not  part  of  the  land,  though  liable  to  be  severed 
by  the  tenant. 

The  words  "merely  for  a  temporary  purpose"  must  be  understood 
as  applying. to  such  a  case  as  we  have  supposed,  of  the  anchor 
dropped  for  the  temporary  purpose  of  mooring  the  ship,  or  the 
instance  immediately  afterwards  given  by  Parke,  B.,  of  the  carpet 
tacked  to  the  floor  for  the  purpose  of  keeping  it  stretched  whilst  it 
was  there  used,  and  not  to  a  case  such  as  that  of  a  tenant  who,  for 


642  HOLLAND    V.    HODGSON.  [cHAP.  IV. 

example,  affixes  a  shop  counter  for  the  purpose  (in  one  sense  tem- 
porary) of  more  effectually  enjoying  the  shop  whilst  he  continues  to 
sell  his  wares  there.  Subject  to  this  observation,  we  think  that  the 
passage  in  the  judgment  in  Hellawell  v.  Eastwood  does  state  the  true 
principles,  though  it  may  be  questioned  if  they  were  in  that  case 
correctly  applied  to  the  facts.  The  court  in  their  judgment  deter- 
mine what  they  have  just  declared  to  be  a  question  of  fact  thus : ''  The 
object  and  purpose  of  the  connection  was  not  to  improve  the  inherit- 
ance, but  merety  to  render  the  machines  steadier  and  more  capable  of 
convenient  use  as  chattels."  Mr.  Field  was  justified  in  sajdng,  as  he 
did  in  his  argument,  that  as  far  as  the  facts  are  stated  in  the  report 
they  are  very  like  those  in  the  present  case,  except  that  the  tenant 
who  put  the  mules  up  cannot  have  been  supposed  to  intend  to  im- 
prove the  inheritance  (if  by  that  is  meant  his  landlord's  reversion), 
but  only  at  most  to  improve  the  property  whilst  he  continued  tenant 
thereof;  and  he  argued  with  great  force  that  we  ought  not  to  act  on  a 
surmise  that  there  were  any  special  facts  or  findings  not  stated  in  the 
report,  but  to  meet  the  case,  as  shewing  that  the  judges  who  decided 
Hellawell  v.  Eastwood  thought  that  articles  fixed  in  a  manner  very 
like  those  in  the  case  before  us  remained  chattels;  and  this  is  felt  by 
some  of  us  at  least  to  be  a  weighty  argument.  But  that  case  was 
decided  in  1851.  In  1853  the  Court  of  Queen's  Bench  had,  in  Wilt- 
shear  v.  Cotterill,  to  consider  what  articles  passed  by  the  conveyance 
in  fee  of  a  farm.  Among  the  articles  in  dispute  was  a  threshing 
machine,  which  is  described  in  the  report  thus:  "The  threshing 
machine  was  placed  inside  one  of  the  bams  (the  machinery  for  the 
horse  being  on  the  outside),  and  there  fixed  by  screws  and  bolts  to 
four  posts  which  were  let  into  the  earth."  Hellawell  v.  Eastwood  was 
cited  in  the  argument.  The  court  (without,  however,  noticing  that 
case)  decided  that  the  threshing  machine,  being  so  annexed  to  the 
land,  passed  by  the  conveyance.  It  seems  difficult  to  point  out  how 
the  threshing  machine  was  more  for  the  improvement  of  the  inherit- 
ance of  the  farm  than  the  present  looms  were  for  the  improvem.ent  of 
the  manufactor}';  and  in  Mather  v.  Eraser,  2  K.  &  J.  536;  25  L.J. 
(Ch.)  361,  Wood,  V.C,  who  was  there  judge  both  of  the  fact  and  the 
law,  came  to  the  conclusion  that  machinery  affixed  not  more  firmly 
than  the  articles  in  question  by  the  owner  of  the  fee  to  land,  for  the 
purpose  of  carrj'ing  on  a  trade  there,  became  part  of  the  land.  This 
was  decided  in  1856.  And  in  Walmsley  v.  Milne,  7  C.B.  (N.S.)  115; 
29  L.J.  (C.P.)  97,  the  Court  of  Common  Pleas,  after  having  their 
attention  called  to  a  slight  misapprehension  by  Wood,  V.C,  of  the 
effect  of  Hellawell  v.  Eastwood,  came  to  the  conclusion,  as  is  stated  by 
them,  at  p.  131,  "that  we  are  of  opinion,  as  a  matter  of  fact,  that 
they  vrere  all  firmly  annexed  to  the  freehold  for  the  purpose  of  im- 
proving the  inheritance,  and  not  for  any  tem.porary  purpose.  The 
bankrupt  was  the  real  owner  of  the  premises,  subject  only  to  a  mort- 


SECT.  I.]  HOLLAND  V.    HODGSON.  643 

gage  which  vested  the  legal  title  in  the  mortgagee  until  the  repay- 
ment of  the  monej^  borrowed.  The  mortgagor  first  erected  baths, 
stables  and  a  coach-house,  and  other  buildings,  and  then  supplied 
them  with  the  fixtures  in  question  for  their  permanent  improvement. 
As  to  the  steam-engine  and  boiler,  they  were  necessary  for  the  use  of 
the  baths.  The  hay-cutter  was  fixed  into  a  building  adjoining  the 
stable  as  an  important  adjunct  to  it,  and  to  improve  its  usefulness 
as  a  stable.  The  malt-mill  and  grinding-stones  were  also  permanent 
erections,  intended  by  the  owner  to  add  to  the  value  of  the  premises. 
They  therefore  resemble  in  no  particular  (except  being  fixed  to  the 
building  b}'  screws)  the  mules  put  up  by  the  tenant  in  Hellawell  v. 
Eastwood."  It  is  stated  in  a  note  to  the  report  of  the  case  that,  on  a 
subsequent  day,  it  was  intimated  by  the  court  that  Mr.  Justice 
WiLLES  entertained  serious  doubts  as  to  whether  the  articles  in 
question  were  not  chattels.  The  reason  of  his  doubt  is  not  stated,  but 
probabl}^  it  was  from  a  doubt  whether  the  Exchequer  had  not,  in 
Hellawell  v.  Eastwood,  shewn  that  they  would  have  thought  that  the 
articles  were  not  put  up  for  the  purpose  of  improving  the  inheritance, 
and  from  deference  to  that  authority.  The  doubt  of  this  learned 
judge  in  one  view  weakens  the  authority  of  Walmsley  v.  Milne,  but 
in  another  view  it  strengthens  it,  as  it  shews  that  the  opinion  of  the 
majority,  that  as  a  matter  of  fact  the  hay-cutter,  which  was  not  more 
firmly  fixed  than  the  mules  in  Hellawell  v.  Eastwood,  must  be  taken 
to  form  part  of  the  land,  because  it  was  "put  up  as  an  adjunct  to  the 
stable,  and  to  improve  its  usefulness  as  a  stable,"  was  deliberately 
adopted  as  the  basis  of  the  judgment;  and  it  is  to  be  observed  that 
WiLLES,  J.,  though  doubting,  did  not  dissent.  Walmsley  v.  Milne 
was  decided  in  1859.  This  case  and  that  of  Wiltshear  v.  Cotterill  seem 
authorities  for  this  principle,  that  where  an  article  is  affixed  by  the 
owner  of  the  fee,  though  only  affixed  by  bolts  and  screws,  it  is  to  be 
considered  as  part  of  the  land,  at  all  events  where  the  object  of  set- 
ting up  the  articles  is  to  enhance  the  value  of  the  premises  to  which  it 
is  annexed  for  the  purposes  to  which  those  premises  are  applied.  The 
threshing  machine  in  Wiltshear  v.  Cotterill  was  affixed  by  the  owner 
of  the  fee  to  the  barn  as  an  adjunct  to  the  barn,  and  to  improve  its 
usefulness  as  a  barn,  in  much  the  same  sense  as  the  hay-cutter  in 
Walmsley  v.  Milne  was  affixed  to  the  stable  as  an  adjunct  to  it,  and 
to  improve  its  usefulness  as  a  stable.  And  it  seems  difficult  to  say 
that  the  machinery  in  Mather  v.  Eraser  was  not  as  much  affixed  to 
the  mill  as  an  adjunct  to  it  and  to  improve  the  usefulness  of  the  mill 
as  such,  as  either  the  threshing  machine  or  the  hay-cutter.  If,  there- 
fore, the  matter  were  to  be  decided  on  principle,  without  reference  to 
what  has  since  been  done  on  the  faith  of  the  decisions,  we  should  be 
much  inclined,  notwithstanding  the  profound  respect  we  feel  for 
everything  that  was  decided  by  Parke,  B.,  to  hold  that  the  looms 
now  in  question  were,  as  a  matter  of  fact,  part  of  the  land.  But  there 


644  HUBBELL    V.    EAST    CAMBRIDGE    BANK.  [CHAP.  IV, 

is  another  view  of  the  matter  which  weighs  strongly  with  us.  Hella- 
well  V.  Eastwood  was  a  decision  between  landlord  and  tenant,  not  so 
likely  to  influence  those  who  advance  money  on  mortgage  as  Mather 
V.  Fraser,  which  was  a  decision  directly  between  mortgagor  and 
mortgagee.  We  find  that  Mather  v.  Fraser,  which  was  decided  in 
1856,  has  been  acted  upon  in  Boyd  v.  Shorrock,  Law  Rep.  5  Eq.  72, 
by  the  Court  of  Queen's  Bench  in  Longhottom  v.  Berry,  Law  Rep. 
5  Q.B.  123,  and  in  Ireland  in  Re  Dawson,  Ir.  Lav\^  Rep.  2  Eq.  222. 
These  cases  are  too  recent  to  have  been  themselves  much  acted  upon, 
but  they  shew  that  Mather  v.  Fraser  has  been  generally  adopted  as 
the  ruling  case.  We  cannot,  therefore,  doubt  that  much  monej'  has, 
during  the  last  sixteen  years,  been  advanced  on  the  faith  of  the  deci- 
sion in  Mather  v.  Fraser,  It  is  of  great  importance  that  the  law  as  to 
what  is  the  security  of  a  mortgagee  should  be  settled;  and  without 
going  so  far  as  to  say  that  a  decision  only  sixteen  years  old  should  be 
upheld,  right  or  wrong,  on  the  principle  that  communis  error  facit 
jus,  we  feel  that  it  should  not  be  revei-sed  unless  we  clearly  see  that  it 
is  wrong.  As  already  said,  we  are  rather  inclined  to  think  that,  if  it 
were  res  Integra  we  should  find  the  same  way.  We  think,  therefore, 
that  the  judgment  below  should  be  affirmed. 

Judgment  [for  the  plaintiffs]  affirmed. 


HUBBELL  V.   EAST  CAMBRIDGE  BANK. 

132  Mass.  447.     1882. 

Replevin  of  "one  large  engine  lathe,  one  small  engine  lathe,  one 
Ames  iron  planer  and  one  upright  drill."  The  case  was  submitted  to 
the  Superior  Court,  and,  after  judgment  for  the  plaintiff,  to  this  court 
on  appeal,  upon  agreed  facts  in  substance  as  follows:  — 

The  articles  replevied,  at  the  time  the  mortgage  hereinafter  named 
was  made,  and  at  the  time  this  action  was  brought,  were  in  a 
building  in  Somerville,  owned  and  used  by  the  American  Art  Foun- 
.dry  Compan}^  in  the  business  of  manufacturing  metallic  castings 
and  metallic  goods,  and  were  suitable  for  and  used  in  said  manu- 
facture. 

On  October  25,  1875,  said  company  mortgaged  to  the  defendant 
the  land  on  which  the  building  was  situated.  This  mortgage  con- 
tained the  usual  power  of  sale,  and  was  duly  recorded.  On  September 
6,  1878,  there  being  a  default  in  the  condition  of  the  mortgage,  the 
defendant  made  an  entry  for  the  purpose  of  foreclosing  the  same;  and 
on  January  13,  1879,  duly  sold  the  premises  under  the  power  in  the 
mortgage  to  John  H.  Leighton,  who,  on  January  29,  reconvej'ed  the 
premises  to  the  defendant. 

On  July  27,  1877,  the  American  Art  Foundry  Company  sold  to  the 


SECT.  I.]  HUBBELL    V.    EAST    CAMBRIDGE    BANK.  G45 

plaintiff  all  the  machinery,  tools,  fixtures  and  personal  property 
used  in  the  business  of  the  company  in  said  building. 

The  large  engine  lathe  named  in  the  writ  was  seven  feet  long,  three 
feet  high  and  fifteen  inches  wide,  and  weighed  about  1400  pounds. 
The  small  engine  lathe  was  forty-two  inches  long,  three  and  one  half 
feet  high  and  fifteen  inches  wide,  and  weighed  500  pounds.  The 
Ames  iron  planer  was  four  feet  long,  three  feet  high  and  twenty 
inches  wide,  and  weighed  1600  pounds.  The  upright  drill  weighed 
about  1200  pounds.  Each  of  these  machines  was  supported  on  four 
iron  legs,  which  rested  upon  a  plank  floor  of  about  two  inches  in 
thickness.  In  the  foot  of  each  leg  was  a  hole,  through  which  passed  a 
screw  of  from  one  and  one  half  to  two  inches  in  length  and  a  little  less 
than  a  quarter  of  an  inch  in  diameter,  by  which  the  machines  were 
fastened  to  the  floor  for  the  purpose  of  steadying  them  while  in  use. 
Each  of  these  machines  was  operated  by  a  belt  and  pulley  connected 
with  a  counter-shaft,  which  v/as  connected  by  a  belt  and  pulley  with 
a  line  of  main  shafting  running  through  the  building.  All  of  these 
m.achines  could  be  removed  without  displacing  or  materially  injuring 
any  part  of  the  building  or  land,  and  used  elsewhere  for  similar 
purposes. 

Morton,  C.J.  The  only  question  in  this  case  is  whether  the  arti- 
cles replevied  passed  to  the  defendant  as  a  part  of  the  realty  under 
its  deed  of  mortgage  from  the  American  Art  Foundry  Company. 

It  is  impossible  to  lay  down  any  precise  test  by  which  to  determine 
whether  machinery  or  other  articles  attached  to  or  used  in  a  build- 
ing become  a  part  ol  the  realty.  It  depends  upon  the  relations  of  the 
parties,  the  character  of  the  articles,  their  adaptation  to,  and  the 
manner  in  v/hich  they  are  attached  to,  or  used  in,  the  building,  and 
generally  upon  the  circumstances  of  each  case  as  indicating  the 
intention  of  the  parties.  In  the  case  of  machinery  or  other  articles, 
which  are  not  obviously  an  integi*al  part  of  the  realty,  the  question 
is  whether  all  the  facts  of  the  case  lead  to  the  presumption  or  infer- 
ence that  the  owner,  in  placing  them  in  the  building,  intended  them 
as  a  permanent  improvement  of  or  addition  to  the  realty.  If  this  is 
the  fair  presumption  or  inference,  then  a  grantee  or  mortgagee  would 
have  the  right  to  consider  them  as  constituting  a  part  of  the  realty, 
and  they  would  pass  to  him  by  his  deed.  Winslow  v.  Merchaiits'  Ins. 
Co.,  4  Met.  306;  Pierce  v.  George,  108  Mass.  78;  McConnell  v.  Blood, 
123  Mass.  47;  Allen  v.  Mooney,  130  Mass.  155. 

In  the  case  before  us,  the  mortgage  deed  to  the  defendant  merely 
conveys  the  land  upon  which  the  building  stood,  and  contains  no 
reference  to  any  of  the  machinery  used  in  the  building.  It  therefore 
furnishes  no  indication  that  the  parties  intended  or  understood  that 
any  of  the  machines  were  to  be  regarded  as  a  part  of  the  realty. 

The  machines  in  question  were  not  annexed  to  the  building,  so  as 
to  indicate  that  they  were  intended  to  be  a  part  of  the  realty.  Each 


646  EX  PARTE  ASTBURY.  [CHAP.  IV. 

of  them  had  four  iron  legs,  which  stood  upon  the  floor,  and  were  fas- 
tened to  the  floor  by  screws  only  for  the  purpose  of  steadying  them 
when  in  use.  They  were  movable  machines,  which,  though  heavy, 
could  be  moved  without  injury  to  the  building,  and  were  equally 
adapted  for  use  elsewhere.  The  mere  fact  that  they  were  adapted  to 
be  used  in  this  factory,  and  that  they  were  necessary  to  carry  on  the 
business,  is  not  enough  of  itself  to  impress  on  them  the  character  of 
realty.  The  same  thing  is  true  of  the  tools  used  by  hand  in  the 
manufacture  there  carried  on. 

The  case  cannot  be  distinguished  from  McConnell  v.  Blood,  vM 
supra,  and  we  are  of  opinion  that,  upon  the  facts  agreed,  the  judg- 
ment of  the  Superior  Court  in  favor  of  the  plaintiff  was  right. 

Judgment  affirmed. 

Note.  —  In  a  majority  of  the  cases  decided  by  the  courts  in  the 
United  States,  dealing  with  facts  similar  to  those  in  the  principal 
case,  the  courts  have  held  the  machinery  to  be  personalty.  See 
Swift  V.  Thompson,  9  Conn.  63;  Wade  v.  Johnston,  25  Ga.  331;  Crane 
Iron  Works  v.  Wilkes,  64  N.J.L.  193;  Murdoch  v.  Gifford,  18  N.Y.  28; 
Teaff  V.  Hewitt,  1  Ohio  St.  511;  Honeyman  v.  Thomas,  25  Or.  539; 
Zimmermann  v.  Basse,  60  Wash.  556. 

But  cf.  Fifield  v.  Farmers'  National  Bank,  148  111.  163 ;  Ottumwa  Mill 
Co.  V.  Hawley,  44  Iowa  57;  Parsons  v.  Copeland,  38  Me.  537;  Lang- 
don  V.  Buchanan,  62  N.H.  657;  McRea  v.  Central  Bank,  66  N.Y.  489. 


Ex  parte  ASTBURY. 

L.  R.  4  Ch.  App.  630.     1869. 

Sir  G.  M.  Giffard,  L.J.  The  questions  in  cases  of  this  description 
are,  for  the  most  part,  much  more  questions  of  fact  than  of  law,  for  to 
my  mind  the  law  has  been  settled,  but  the  facts  necessarily  differ 
more  or  less  in  each  particular  case. 

With  respect  to  the  law,  it  is  admitted  that  where  there  is  a  mort- 
gage of  a  manufactory,  and  part  of  the  machinery  used  in  it  is  a  fix- 
ture, that  part  passes.  We  have,  therefore,  to  determine  what,  ac- 
cording to  the  law,  are,  in  a  proper  sense,  fixtures.  There  are  two 
dicta  which  will  be  sufficient  to  guide  us  for  the  present  purpose.  In 
Mather  v.  Fraser,  2  K.  &  J.  536,  it  was  decided  that  the  article  must 
be  an  essential  part  of  the  machine.  I  think  that  was  all  that  it  was 
necessary  to  lay  down  in  that  case.  The  dictum  of  Lord  Cottenham 
in  Fisher  v.  Dixon,  12  CI.  &  F.  312,  was  that  all  "belonging  to  the 
machine"  would  pass,  and  I  should  say  in  this  case  the  proper  test 
to  lay  down  would  be  that  the  chattel  must  be  "something  which 
belongs  to  the  machine  as  part  of  it." 


SECT.  I.]  EX    PARTE    ASTBURY.  647 

Now,  these  machines  were  rolling  machines,  and  there  appear  to 
be  connected  with  rolling  machines  parts  which,  beyond  all  doubt, 
are  not  fixed,  in  the  strict  sense  of  the  term;  but  it  is  in  evidence 
that  if  a  machine  is  ordered,  it  is  sent  with  one  set  of  rolls,  and  it  is 
quite  manifest  that  without  rolls  the  machine  could  not  do  any  part 
of  the  work  for  which  it  is  made.  One  set  of  rolls  clearly  passes.  But 
we  have  here  duplicate  rolls,  and  with  reference  to  them  —  I  am  not 
now  speaking  of  rolls  which  can  be  considered  as,  in  any  sense,  un- 
finished, but  of  duplicate  rolls  which  have  been  actually  fitted  to  the 
machine  —  I  cannot  see  why,  if  one  set  of  rolls  passes,  the  duplicate 
rolls  should  not  pass  also.  It  comes,  in  fact,  to  this,  that  the  machine 
with  one  set  of  rolls  is  a  perfect  machine,  but  the  machine  with  a 
duplicate  set  is  a  more  perfect  machine.  I  think,  therefore,  that  each 
set  of  rolls  necessarily  belongs  to  the  machine  as  part  of  it.  I  do  not 
think  that  this  is  at  all  affected  by  the  dictum  of  Fitzherbert;  but  if 
it  was,  my  answer  would  be,  that  this  subject  has  been  considered 
much  more  of  late  years  than  it  was  in  olden  times,  and  that  the 
matter  decided  was  with  regard  to  a  question  of  distress.  If  it  were 
desired  to  reduce  the  question  to  an  absurdity,  it  would  be  by  sup- 
posing a  case  of  duplicate  latch  keys  to  a  door,  and  holding  that  one 
only  should  pass,  and  not  the  other.  The  fact  is,  that  whether  there 
is  one  set  of  rolls  or  a  duplicate  set,  they  are  each  part  and  parcel  of 
the  machine,  and  come  within  the  term  "belonging  to  the  machine  as 
part  of  it." 

Then  comes  the  case  as  to  the  different  sizes  of  rolls.  But  if  the 
duplicates  of  the  same  size  pass,  it  follows  that  the  rolls  of  different 
sizes  pass,  if  they  render  the  machine  still  more  perfect  than  if  the 
rolls  were  all  of  the  same  size. 

Then  we  come  to  another  and  different  class  of  rolls,  and  there  I 
confess  I  differ  from  the  Registrar  who  has  given  his  opinion  in  this 
case.  I  allude  to  those  rolls  which  had  been  made  for  the  purpose  of 
being  used  in  this  machine,  and  had  been  sent  to  the  mill  for  that 
purpose,  but  had  never  been  fitted  to  the  machine,  and  which  re- 
quired something  more  to  be  done  to  fit  them  to  the  machine  in  order 
that  they  might  be  used  in  it.  I  think  that  if  a  man  mortgages  a 
machine,  and  afterwards,  the  machine  itself  being  perfect,  and  fitted 
with  rolls  and  everything  else  connected  with  it,  other  rolls  are  sent 
for  to  be  used  with  the  machine,  but  those  rolls  cannot  be  used  unless 
and  until  they  are  fitted  to  the  machine,  it  would  be  going  a  long  way 
to  say  that  the  mortgagor  should  be  compelled  to  fit  those  rolls  to  the 
machine,  and  should  be  precluded  from  saying  that  they  do  not  form 
a  part  of  the  machine. 

Therefore  I  am  of  opinion  that,  as  regards  the  duplicate  rolls,  as 
regards  the  rolls  of  different  sizes,  as  regards  all  the  rolls  which  have 
been  actually  fitted  to  the  machine,  they  belong  to  the  machine  as 
part  of  the  machine  —  they  are,  in  fact,  essential  parts  of  the  ma- 


648  HOPE^YELL  MILLS  V.  TAUNTON  SAVINGS  BANK.      [cHAP.  IV. 

chine.  But  I  cannot  hold  that  the  rolls  which  have  never  been  fitted 
to  the  machine,  and  have  never  been  used  in  the  machine,  and  which 
require  something  more  to  be  done  to  them  before  they  are  fitted  to 
the  machine,  belong  to  the  machine,  or  that  they  are  essential  parts 
of  it.  Therefore,  in  that  respect,  the  order  will  be  varied. 


HOPEWELL  MILLS  v.  TAUNTON  SAVINGS  BANK. 

150  Mass.  519.     1890. 

Tort  for  the  conversion  of  certain  cotton  machinery.  The  case 
was  submitted  to  the  Superior  Court,  and,  after  judgment  for  the 
defendant,  to  this  court,  on  appeal  on  agreed  facts,  in  substance  as 
follows :  — 

On  December  16,  1884,  the  plaintiff  corporation  became  the  owner 
of  an  estate,  consisting  of  land  with  a  cotton  mill  and  other  buildings 
thereon  and  of  an  adjacent  water  privilege,  by  which  together  with 
steam  power  the  mill  was  run.  This  estate  was  conveyed  to  the  plain- 
tiff, subject  to  a  mortgage  made  in  1876  by  the  plaintiff's  predecessor 
in  title  to  the  first-named  defendant,  which  included  the  mill  "with 
all  machineiy,  tools,  and  fixtures  and  furniture  therewith  appertain- 
ing." The  mill,  when  this  mortgage  was  given  and  for  some  time 
thereafter,  was  used  only  in  making  white  or  uncolored  cotton  goods. 
Subsequently  the  machinery  in  question  was  purchased  by  the  plain- 
tiff and  by  one  of  its  predecessors  in  title,  and  placed  either  in  the  mill 
or  in  additions  erected  thereto,  and  consisted  of  a  ring  frame,  mules, 
looms  and  loom  beams,  a  skein  winder,  reel,  cop  spooler,  dresser,  four 
dobby-heads,  a  picker  head  or  beater,  and  a  cloth  brush  and  shear. 
All  this  machinery  was  put  into  the  mill,  either  for  the  better  manu- 
facture of  the  kind  of  cotton  goods  hitherto  made  there,  or  for  making 
new  varieties  of  cotton  goods,  both  colored  and  uncolored ;  and  all  of 
it,  with  the  exception  of  the  brush  and  shear,  which  replaced  another 
brush  then  laid  aside  as  ineffective,  was  additional  to  that  already  in 
the  mill.  The  machines,  with  the  exception  of  the  dobby-heads  and 
loom  beams,  were  large  and  heavy,  varjdng  in  weight  from  three 
hundred  to  two  thousand  pounds,  and,  with  the  exception  of  the 
picker  head,  were  screwed  down  to  the  floors  of  the  rooms  in  which 
they  were  situated,  in  order  to  steady  them  when  in  use;  but  this  was 
not  the  only  purpose  for  which  they  were  so  fastened.  The  machines 
were  connected  by  pulleys,  belts,  and  shafting  with  the  power  oper- 
ating the  mill.  None  of  them  was  specially  built  for  use  in  this 
particular  mill,  and  all  could  equally  well  be  used  for  the  same  pur- 
poses in  any  other  cotton  mill  with  the  ordinary  room  to  hold  it  and 
power  to  operate  it.  The  new  looms,  reel,  cop  spooler,  skein  winder, 
dresser,  and  dobby-heads,  which  last  were  attached  to  four  of  the  old 


SECT.  I.]         HOPEWELL  MILLS  V.  TAUNTON  SAVINGS  BANK.  649 

looms  in  the  mill,  were  all  put  in  for  the  making  of  new  kinds  of  cot- 
ton cloth,  but  were  equally  well  adapted  for  that  hitherto  manufac- 
tured in  the  mill.  The  reel  and  skein  winder  were  necessary  for  wind- 
ing the  colored  yarn  for  the  new  colored  goods,  and  the  cop  spooler 
was  put  in  to  wind  the  yarn  spun  by  the  new  mules.  The  dresser 
was  heated  by  a  system  of  steam  pipes  within  it,  connected  with  the 
main  boiler  of  the  mill.  The  loom  beams,  each  of  which  formed  an 
essential  part  of  a  loom,  were  purchased  and  placed  in  the  mill  to 
facilitate  the  weaving  of  the  new  kinds  of  goods,  both  plain  and 
colored.  They  were  used  for  holding  warp,  and  were  laid  upon  the 
looms,  being  in  no  way  fastened  to  them,  and  were  steadied  by  a 
rope  with  a  weight  attached.  The  picker  head  or  beater  was  at- 
tached to  the  picker  then  in  the  mill,  which  up  to  that  time  had  had 
but  one  beater,  and  served  to  render  the  machine  more  effective. 
The  mill  and  additions  could  be  as  beneficially  used  in  the  manu- 
facture of  other  textile  fabrics,  in  the  sense  that  any  cotton  mill 
could  be  so  used.  All  of  the  machines  could  be  taken  out  of  the  mill 
without  injury  to  themselves,  or  to  the  realty,  except  to  a  very  slight 
extent  by  leaving  screw  holes  in  the  floor. 

The  plaintiff,  after  all  the  above  machinery  had  been  purchased 
and  placed  in  the  mill,  operated  it  until  October  1,  1887,  and  then 
ran  out  the  stock  and  closed  the  mill,  and  ceased  to  pay  interest  on 
the  mortgage.  Thereafter  the  first-named  defendant  duly  foreclosed 
the  mortgage  for  breach  of  condition  by  a  sale  of  the  entire  estate, 
and  subsequently,  on  July  10,  1888,  conveyed  it  to  the  other  defend- 
ants, Cyrus  G.  Beebe  and  Frederick  Beebe,  the  deed  to  them  includ- 
ing the  "machinery,  tools,  and  furniture  thereto  appertaining  and 
belonging."  The  Beebes  entered  into  possession,  the  machinery  in 
question  being  at  the  time  still  affixed  to  the  mill  as  above  stated, 
and  not  since  detached,  and  at  once  began  to  operate  the  mill  as  a 
cotton  mill,  using  all  the  machinery,  and  refused  to  give  it  up  or  to 
allow  the  plaintiff  to  take  it,  although  due  demand  was  made  on 
them  therefor. 

If  upon  these  facts  the  plaintiff  could  recover,  judgment  was  to  be 
entered  in  its  favor;  otherwise,  judgment  was  to  be  for  the  defend- 
ants. 

Knowlton,  J.  This  case  is  submitted  on  an  agreed  statement  of 
facts;  and,  since  the  burden  of  proof  is  on  the  plaintiff,  there  must 
be  judgment  for  the  defendants  unless  the  facts  stated  establish 
the  plaintiff's  title. 

There  is  some  conflict  of  authority,  in  different  jurisdictions,  in 
regard  to  the  question  when  machines  placed  in  a  building  become 
fixtures  which  pass  with  a  conveyance  of  the  real  estate.  In  this 
commonwealth  the  general  principles  applicable  to  such  cases  have 
often  been  considered,  and  are  well  established;  but  there  is  fre- 
quently difficulty  in  the  application  of  them  to  particular  cases. 


650  HOPEWELL    MILLS    V.    TAUNTON    SAVINGS   BANK.      [cHAP.  IV. 

The  character  of  the  property,  as  real  or  personal,  may  be  fixed  by 
contract  with  the  owner  of  the  real  estate  when  the  article  is  put  in 
position;  but  such  a  contract  cannot  affect  the  rights  of  a  mortgagee, 
or  of  an  innocent  purchaser  without  notice  of  it.  Hu7it  v.  Bay  State 
Iron  Co.,  97  Mass.  279.  Thojnpson  v.  Vinton,  121  Mass.  139.  South- 
bridge  Savings  Bank  v.  Exeter  Machine  Works,  127  Mass.  542,  545. 
Case  Manuf.  Co.  v.  Garven,  45  Ohio  St.  289.  Except  in  cases  where  a 
contract  determines  the  question,  a  machine  placed  in  a  building  is 
found  to  be  real  estate  or  personal  property  from  the  external  indica- 
tions which  show  whether  or  not  it  belongs  to  the  building  as  an 
article  designed  to  become  a  part  of  it,  and  to  be  used  with  it  to  pro- 
mote the  object  for  which  it  was  erected,  or  to  which  it  has  been 
adapted  and  devoted,  —  an  article  intended  not  to  be  taken  out  or 
used  elsewhere,  unless  by  reason  of  some  unexpected  change  in  the 
use  of  the  building  itself.  The  tendency  of  the  modern  cases  is  to 
make  this  a  question  of  what  was  the  intention  with  which  the  ma- 
chine was  put  in  place.  Turner  v.  Wentworth,  119  Mass.  459.  South- 
bridge  Savings  Bank  v.  Exeter  Machine  Works,  127  IMass.  542,  545. 
Allen  V.  Mooney,  130  Mass.  155.  Smith  Paper  Co.  v.  Servin,  130 
Mass.  511,  513.  Hubbell  v.  East  Cambridge  Bank,  132  INIass.  447. 
Maguire  v.  Park,  140  Mass.  21.  McRea  v.  Central  National  Bank,  66 
N.Y.  489.  Hill  v.  National  Bank,  97  U.S.  450.  Ottumwa  Woolen  Mill 
V.  Hawley,  44  Iowa,  57.  These  cases  seem  to  recognize  the  true  prin- 
ciple on  which  the  decisions  should  rest,  only  it  should  be  noted  that 
the  intention  to  be  sought  is  not  the  undisclosed  purpose  of  the  actor, 
but  the  intention  implied  and  manifested  by  his  act.  It  is  an  inten- 
tion which  settles,  not  merely  his  own  rights,  but  the  rights  of  others 
who  have  or  who  may  acquire  interests  in  the  property.  They  cannot 
know  his  secret  purpose;  and  their  rights  depend,  not  upon  that,  but 
upon  the  inferences  to  be  drawn  from  what  is  external  and  visible. 
In  cases  of  this  kind  every  fact  and  circumstance  should  be  con- 
sidered which  tends  to  show  what  intention,  in  reference  to  the  rela- 
tion of  the  machine  to  the  real  estate,  is  properly  imputable  to  him 
who  put  it  in  position. 

Whether  such  an  article  belongs  to  the  real  estate  is  primarily  and 
usually  a  question  of  mixed  law  and  fact.  Turner  v.  Wentworth,  119 
Mass.  459.  Allen  v.  Mooney,  130  Mass.  155.  Maguire  v.  Park,  140 
Mass.  21.  Carpenter  v.  Walker,  140  Mass.  416.  Southbridge  Savings 
Bank  v.  Mason,  147  Mass.  500.  But  the  principal  facts,  when  stated, 
are  often  such  as  will  permit  no  other  presumption  than  one  of  law. 
It  is  obvious  that  in  most  cases  there  is  no  single  criterion  by  which 
we  can  decide  the  question.  The  nature  of  the  article,  and  the 
object,  the  effect,  and  the  mode  of  its  annexation,  are  all  to  be  con- 
sidered. In  this  commonwealth  it  has  been  said  that  "whatever  is 
placed  in  a  building  subject  to  a  mortgage,  by  a  mortgagor  or  those 
claiming  under  him,  to  carry  out  the  purpose  for  which  it  was 


SECT.  I.]         HOPEWELL    MILLS    V.    TAUNTON    SA\^NGS   BANK.  651 

erected,  and  permanently  to  increase  its  value  for  occupation  or  use, 
although  it  may  be  removed  without  injury  to  itself  or  the  building, 
becomes  part  of  the  realty."  Southbridge  Savings  Bank  v.  Mason,  147 
Mass.  500.  Pierce  v.  George,  108  Mass.  78.  This  rule  generally  pre- 
vails also  in  other  jurisdictions.  Parsons  v.  Copeland,  38  Maine,  537. 
Holland  v.  Hodgson,  L.  R.  7  C.  P.  328.  Lo?igbottom  v.  Berry,  L.  R.  5 
Q.  B.  123.  McRea  v.  Central  National  Bank,  66  N.Y.  489.  Hill  v. 
National  Bank,  97  U.S.  450.  Harlan  v.  Harlan,  15  Penn.  St.  507. 
Delaware,  Lackawanna,  &  Western  Railroad  v.  Oxford  Iron  Co.,  9 
Stew.  452.  Roddij  v.  Brick,  15  Stew.  218,  225.  Ottumwa  Woolen  Mill 
v.  Hawley,  44  Iowa,  57. 

We  are  of  opinion  that  this  rule  is  applicable  to  the  case  at  bar. 
The  building  mortgaged  was  a  cotton  mill;  and  the  machinerj'  in 
controversy  was  all  procured  for  use  in  manufacturing  cotton  cloth. 
Most  of  it  was  heav;y';  and  there  is  much  to  indicate  that,  while  there 
were  changes  in  the  kinds  of  goods  manufactured,  the  machines  were 
not  of  a  kind  intended  to  be  moved  from  place  to  place,  but  to  be  put 
in  position,  and  there  used  with  the  building  until  they  should  be 
worn  out,  or  until,  for  some  unforeseen  cause,  the  real  estate  should 
be  changed  and  put  to  a  different  use.  Of  most  of  them  it  is  said  in 
the  agreed  statement  that  they  were  fastened  to  the  floor  for  the  pur- 
pose of  steadying  them  when  in  use;  but  it  is  also  said  that  this  is  not 
a  statement  of  the  only  purpose  for  which  they  were  fastened.  They 
seem  to  have  been  attached  to  the  building,  and  connected  with  the 
motive  power,  with  a  view  to  permanence.  The  loom  beams  are 
essential  parts  of  the  looms;  and  although  they  are  not  fastened  to 
the  looms,  but  are  laid  upon  them  when  in  use,  they  are  no  less  real 
estate  than  those  parts  of  the  looms  which  are  annexed  to  the  realty. 
No  suggestion  is  made  in  regard  to  any  other  part  of  the  property, 
which  calls  for  a  distinction  between  different  articles. 

We  are  of  opinion  that  the  agreed  facts  do  not  show  that  the 
machinery  was  personal  property,  for  which  trover  can  be  main- 
tained ;  and  the  entry  must  be. 

Judgment  for  the  defendants. 

Note.  —  For  cases  holding  that  equipment  intended  to  be,  and 
remain,  apart  of  an  assembled  plant  is  realty,  see  Humes  v.  Higman, 
145  Ala.  2\b;  Kansas  City  Co.  v.  Anderson,  88  Ark.  129;  Equitable  Co. 
v.  Knowles,  8  Del.  Ch.  106;  Brigham  v.  Overstreet,  128  Ga.  447;  Fifield 
V.  Farmers'  Bank,  148  111.  163;  Dudley  v.  Hurst,  67  Md.  44,  51; 
Dhring  v.  Beck,  146  ]Mich.  706;  Feder  v.  Van  Winkle,  53  N.J.  Eq. 
370. 


652  HILLEBRAND    V.    NELSON,  [CHAP.  IV. 

HILLEBRAND  v.     NELSON. 

95  N.  W.  (Neb.)  1068.     1901. 

Pound,  C.  We  are  brought,  therefore,  to  the  question  whether  the 
articles  in  controversy  were  a  part  of  the  realty,  or,  in  other  words,  j&x- 
tures,  so  as  to  pass  by  the  mortgage  of  the  realty.  They  are  described 
in  the  petition  as  ''the  following  goods  and  chattels,  to  wit,  fifteen 
wheelbarrows,  one  tool  box,  one  sand  box,  four  planks,  two  thousand 
square  boards  eight  by  ten  inches,  one  oil  tank  and  contents,  twenty- 
five  planks,  three  crowbars,  two  shovels,  3550  pallets."  The  mere 
enumeration  of  these  articles,  which  the  plaintiff  had  the  burden  of 
proving  to  be  a  part  of  the  realty,  is  almost  decisive.  The  ordinary 
criteria  of  a  fixture  are:  "(1)  Actual  annexation  to  the  I'ealty,  or 
something  appurtenant  thereto ;  (2)  appropriation  to  the  use  or  pur- 
pose of  that  part  of  the  realty  with  which  it  is  connected;  (3)  the 
intention  of  the  one  making  the  annexation  to  make  the  article  a 
permanent  accession  to  the  freehold,  this  intention  being  gathered 
from  the  nature  of  the  articles  affixed,  the  relation  and  situation  of 
the  person  making  the  same,  the  structure  and  mode  of  annexation, 
and  the  pui-pose  or  use  for  which  it  has  been  made."  Oliver  v,  Lans- 
ing, 59  Neb.  219,  80  N.  W.  829.  These  requisites  are  not  alternative; 
they  must  concur.  Wolfordv.  Baxter,  33  Minn.  12,  21  N.  W.  744,  53 
Am.  Rep.  1;  Farmers'  Loan  &  Trust  Co.  v.  Minneapolis  Engines  & 
Machine  Works,  35  Minn.  543,  29  N.  W.  349;  Chase  v.  Tacoma  Box 
Co.,  11  Wash.  377,  39  Pac.  639;  Helm  v.  Gilroy,  20  Or.  522,  26  Pac. 
853;  Hopewell  Mills  v.  Taunton  Savings  Bank,  150  Mass.  519,  523,  23 
N.  E.  327,  6  L.  R.  A.  249,  15  Am.  St.  Rep.  235;  Ewell,  Fixtures,  21, 
22.  The  sole  basis  of  the  claim  that  the  articles  here  in  controversy 
are  fixtures  arises  from  the  fact  that  articles  of  that  kind  are  neces- 
sary to  the  effective  operation  of  the  plant.  But  this  is  far  from 
sufficient  so  long  as  they  are  loose  and  portable,  have  no  special  or 
peculiar  adaptation  to  this  particular  plant,  and  are  either  adapted  to 
general  use  or  to  use  with  equal  efficiency  in  any  like  establishment. 
As  remarked  in  a  leading  case:  "If  adaptation  and  necessity  for  the 
use  and  enjoyment  of  the  realty  be  the  sole  test  of  a  fixture,  then  the 
implements  and  domestic  animals  necessary  for  the  cultivation  of  a 
farm  and  a  great  variety  of  other  articles  subject  to  the  use  of  the 
land  or  its  appurtenances,  which  never  have  been  and  never  can  be 
recognized  as  such,  would  be  fixtures."  Teaff  v.  Hewitt,  1  Ohio  St. 
511,  529,  59  Am.  Dec.  634.  We  need  not  go  beyond  the  decisions  of 
this  court  upon  the  question.  In  Oliver  v.  Lansing,  supra,  the  court 
said  in  passing  upon  property  used  in  a  theater:  "We  can  conceive  of 
no  rule  of  the  common  law  which  would  justify  a  court  in  holding 
that  a  piano,  a  desk  and  chair,  carpets,  curtains,  baggage  truck,  a 
stepladder,  a  center  table,  or  a  settee,  under  the  evidence,  were  real 


SECT.  I.]  KINNEAR    V.'  SCENIC    RAILWAYS    CO.  653 

property,  although  they  may  have  been  bought  by  the  parties  with 
the  intention  that  they  should  remain  permanently  in  this  building, 
and  be  used  in  connection  with  it,  until  worn  out  and  unfitted  for 
service."  Like  conclusions  have  been  reached  with  respect  to  articles 
similar  to  those  here  in  controversy  in  Hubbell  v.  East  Cambridge 
Savings  Bank,  132  Mass.  447,  43  A^i-  Rep.  446;  Winslow  v.  Bromich, 
54  Kan.  300,  38  Pac.  275,  45  Am.  St.  Rep.  285;  Chase  v.  Tacoma  Box 
Co.,  11  Wash.  377,  39  Pac.  639;  Woljai'd  v.  Baxter,  33  Minn.  12,  21 
N.  W.  744,  53  Am.  Rep.  1;  Scudder  v.  Anderson,  54  Mich.  122,  19 
N.  W.  775. 


KINNEAR  V.  SCENIC  RAILWAYS  CO. 

223  Pa.  390.     1909. 

Opinion  by  Mr.  Justice  Mestrezat,  January  4,  1909: 
A  corporation,  whose  name  was  subsequently  changed  to  Luna 
Park  Company,  was  incorporated  February  1,  1905,  "for  the  pur- 
pose of  maintaining  and  operating  a  park  for  the  amusement,  enter- 
tainment and  recreation  of  the  public."  By  deed  dated  January  18, 
1905,  the  company  purchased  a  tract  of  land  in  the  thirteenth  ward 
of  the  city  of  Pittsburg,  containing  between  sixteen  and  seventeen 
acres,  on  which  it  erected  a  number  of  buildings,  improvements  and 
de\'ices,  which  were  used  for  amusement  purposes  during  the  sum- 
mers of  the  years  1906,  1907  and  1908.  To  secure  the  payment  of 
$75,000,  the  balance  of  the  unpaid  purchase  money,  the  company 
gave  a  mortgage  on  the  premises  of  even  date  with  the  deed. 

The  park  company  by  an  agi-eement  dated  January  31,  1906, 
leased  to  J.  A.  Miller,  acting  as  agent  for  the  appellant  company, 
for  the  term  of  seven  years,  a  small  portion  of  the  ground  purchased 
by  it  as  stated  above,  "including  the  Japanese  theater  building  now 
located  in  said  park,"  for  the  purpose  of  constructing  thereon  and 
operating  a  scenic  railway,  an  amusement  device  generalh'  known  as 
"Leap  the  Dips."  The  consideration  was  twenty-seven  and  one-half 
per  cent  of  the  gross  receipts  derived  from  the  operation  of  the  rail- 
way, settlements  to  be  made  daily.  The  agreement  provided,  inter 
alia,  that  the  park  company  at  its  option  might  appoint  a  cashier  to 
receive  all  moneys  from  sale  of  tickets;  that  the  plant  should  at  all 
times  be  subject  to  the  inspection  and  approval  of  the  park  company; 
that  the  buildings  and  appliances  were  to  revert  to  the  park  com- 
pany upon  the  termination  of  the  lease;  also  that  the  park  company 
should  have  the  right  to  buy  the  leasehold,  with  all  the  buildings  and 
appliances  erected  and  contained  thereon,  at  the  end  of  any  park 
season  during  the  term  of  the  lease,  provided  the  purchase  was  made 
within  sixty  days  from  closing  date  of  any  park  season,  with  a  reduc- 
tion of  ten  per  cent  of  the  original  cost  for  each  season  during  which 


654  KINNEAR    V.    SCENIC    RAILWAYS    CO.  [CHAP.  IV, 

the  railroad  was  operated.  The  railway  was  duly  constructed  by 
Miller  and  until  the  season  of  1908  was  operated  by  him  and  the 
appellant  company,  to  whom  the  lease  was  assigned  by  Miller. 

The  park  company  borrowed  $70,000  of  the  Keystone  National 
Bank  and  secured  the  payment  of  it  by  a  second  mortgage  upon  the 
park  property,  dated  September  5,  1906,  and  duly  recorded.  The 
cashier  of  the  bank  knew  of  the  lease  to  Miller  at  the  time  the  mort- 
gage was  taken,  but  did  not  know  that  it  had  been  assigned  to  the 
appellant  company. 

As  found  by  the  trial  judge,  "Luna  Park  is  an  assemblage  of 
amusement  places  and  devices  open  to  the  public,  which  are  changed 
from  time  to  time  to  meet  the  desires  of  the  patrons  of  the  park,  an 
admission  fee  being  charged  to  the  park  as  well  as  to  the  different 
amusements  contained  within  the  park." 

In  a  proceeding  on  the  mortgage  held  by  the  Keystone  National 
Bank  against  the  park  company,  the  property  was  sold  and  pur- 
chased by  plaintiff,  the  appellee,  and  conveyed  to  him  by  the  sheriff 
by  deed  dated  March  2,  1908.  In  a  similar  proceeding  on  the  pur- 
chase money  mortgage,  the  property  was  also  sold  and  purchased  by 
the  appellee,  and  the  sheriff  conveyed  it  to  him  by  deed  dated  May 
4,  1908.  The  appellee  holds  the  property  as  agent  and  trustee  for  the 
Keystone  National  Bank,  whose  employees  and  servants  have  been 
in  possession  of  the  park  and  all  the  property  since  it  became  the 
purchaser  under  the  first  sale  by  the  sheriff. 

The  appellant  company  claiming  the  right  to  remove  the  scenic 
railway  which  it  erected  on  the  leased  premises,  the  appellee  filed  this 
bill  to  restrain  the  appellant  from  interfering  with  or  attempting  to 
remove  the  buildings  and  improvements  located  on  the  premises, 
and  erected  or  constructed  by  the  appellant  company.  The  appellee 
claims  that  he  is  the  owner  of  the  property  by  virtue  of  his  purchase 
in  the  proceedings  on  the  mortgages,  and  the  appellant  company 
contends  that  the  lease  was  ended  by  the  foreclosure  of  the  fii'st 
mortgage  and  that  therefore  it  has  the  right  to  remove  the  property 
in  dispute  as  trade  fixtures  of  a  tenant. 

The  court  below  found  all  the  material  facts,  and,  inter  alia,  the 
following:  "The  Scenic  Railway  is  one  of  the  best  patronized  and 
most  profitable  amusement  features  of  the  park.  It  is  substantially 
built,  with  superstructure  consisting  of  uprights  and  supports  im- 
bedded in  the  earth  to  a  distance  below  the  frost  line,  and  with  the 
platforms  attached  to  the  pavilion,  or  Japanese  theater  building, 
which  is  used  as  a  ticket  office  and  station  for  entrance  to  and  exit 
from  the  cars.  .  .  .  The  construction  of  a  scenic  railway  is  such  that 
its  superstructure  can,  without  serious  injury  to  the  materials  used, 
be  taken  down  and  reconstructed  in  another  location.  The  removal 
and  re-erection  of  such  structures  is,  however,  of  infrequent  occur- 
rence." 


SECT.  I.]  KINNEAR    V.    SCENIC    RAILWAYS    CO.  655 

The  learned  judge  held  that  if  the  lease  had  simply  given  Miller 
the  right  to  enter  upon  and  erect  the  scenic  railway  without  any 
other  provisions  affecting  the  question,  that  the  property  in  dispute 
might  be  considered  a  trade  fixture  and  held  to  be  subject  to  the  law 
governing  such  property;  but  he  was  of  the  opinion  that  the  lease 
determined  the  rights  of  the  parties  and  that  it  "clearly  indicates  an 
intention  that  the  railway  and  its  appUances  should  be  permanent 
fixtures,  and  remain  in  the  park  until  the  termination  of  the  lease, 
when  they  should  become  the  absolute  property  of  the  park  com- 
pany." He,  therefore,  held  that  the  title  to  the  property'  passed  to  the 
appellee  as  purchaser  of  the  land  under  the  mortgages.  The  injunc- 
tion was  granted  as  prayed  for  in  the  bill,  and  the  defendant  has 
taken  this  appeal. 

We  think  the  learned  trial  judge  was  correct  in  holding  that  the 
property  in  dispute  was  a  part  of  the  realty  and  passed  to  the  pur- 
chaser at  the  sale  made  under  the  proceedings  on  the  mortgage.  The 
character  of  the  property,  whether  personal  or  a  part  of  the  real 
estate,  must  be  determined  by  the  covenants  contained  in  the  agree- 
ment of  January  31,  1906.  That  agi-eement,  read  in  the  light  of  all 
the  circumstances,  leaves  no  doubt  of  the  intention  of  the  parties  as 
to  the  character  of  the  property.  As  observed  above,  the  Luna  Park 
Company  was  incorporated  for  the  purpose  of  operating  an  amuse- 
ment park.  The  sixteen  acres  of  land  owned  by  the  corporation  were 
purchased  to  carry  out  the  purpose  of  the  corporation.  The  object 
the  company  had  in  obtaining  title  to  the  land  in  Pittsburg  was  to 
make  it  a  place  "for  the  amusement,  entertainment  and  recreation 
of  the  public."  The  company  erected  various  devices  on  the  premises 
for  the  amusement  of  the  public  and  has  continuously  operated  the 
property  as  a  place  of  amusement  since  the  erection  and  construc- 
tion of  the  buildings. 

In  view  of  the  purpose  for  which  the  charter  was  obtained  by  the 
Luna  Park  Company  and  of  the  fact  that  the  land  was  purchased  by 
the  company  to  carry  out  the  purpose,  there  can  be  no  difficulty  in 
determining  that  under  the  terms  of  the  lease  it  was  the  intention  of 
the  lessor  and  lessee  that  the  scenic  railway  should  be  annexed  to  the 
real  estate  and  become  a  permanent  improvement  in  the  park.  The 
intention  which  controls  and  determines  whether  or  not  a  chattel  is 
annexed  and  becomes  a  part  of  the  realty  is  the  intention  the  parties 
had  at  the  time  it  was  placed  upon  the  property.  Vail  v.  Weaver,  132 
Pa.  363;  Carver  v.  Gough,  153  Pa.  225. 

The  lease  was  for  seven  years  and  was  "of  a  space  in  said  park  for 
the  purpose  of  constructing  and  operating  thereon  an  amusement 
device."  This  was  the  purpose  for  which  the  Luna  Park  Company 
was  chartered  and  its  land  was  purchased.  In  leasing  this  space  to 
Miller,  therefore,  it  was  for  a  purpose  to  which  the  lessor  was  devot- 
ing the  balance  of  the  park,  and  instead  of  the  park  company  erecting 


656  KINNEAR    V.    SCENIC    RAILWAYS    CO.  [cHAP.  IV'. 

the  device,  it  leased  the  space  of  ground  to  Miller  for  the  like  purpose 
of  erecting  and  operating  the  railway  for  a  limited  time.  Under  the 
covenants  of  the  lease,  the  scenic  railway  was  practically  under 
the  control  of  the  lessor  like  the  other  amusement  devices  con- 
structed and  operated  on  the  park  premises.  As  said  by  the  court  in 
Thompson  Scenic  Raihvay  Company  v.  Young,  90  Md.  278:  "It 
(scenic  railway)  was  only  available  for  pleasure  resorts  and  had  no 
general  utility."  After  the  lease  expired,  it  could  be  utilized  by  the 
park  company  in  the  operation  of  the  park  as  a  place  of  amusement. 
By  the  terms  of  the  lease  the  railway  was  attached  to  and  became 
a  part  of  the  Japanese  theater  building  on  the  park  property  and 
.owned  by  the  park  company.  The  lessor  company  had  the  authority 
to  appoint  a  cashier  to  receive  all  the  moneys  from  the  sale  of  admis- 
sion tickets  to  the  railway.  The  railway  was  at  all  times  subject  to 
inspection  and  approval  of  the  park  company.  The  consideration  to 
be  paid  the  company  was  twenty-seven  and  one-half  per  cent  of  the 
gross  receipts  from  the  operation  of  the  railway,  and  it  was  to  be  paid 
daily.  In  addition  to  these  pro\'isions,  it  is  specifically  provided  in 
the  lease  that  the  buildings  and  appliances  erected  by  the  lessee  were 
to  revert  to  the  lessor  upon  the  termination  of  the  lease;  and  further 
that  the  lessor  was  to  have  the  right  to  buy  the  leasehold  with  the 
buildings  and  appliances  at  the  end  of  any  park  season  during  the 
continuance  of  the  lease  by  paying  ten  per  cent  less  than  the  original 
cost  for  each  season  during  which  the  railway  device  had  been  oper- 
ated. These  several  provisions  of  the  lease  leave  no  doubt  whatever 
as  to  the  intention  of  both  parties  at  the  time  the  instrument  was 
executed  and  the  scenic  railway  was  erected  on  the  park  premises. 
The  manifest  purpose  of  the  lessor  was  to  add  another  attractive 
amusement  to  its  park.  As  we  have  said,  it  could  havs  constructed 
the  railway;  but  it  preferred  to  lease  the  space  of  ground  and  permit 
the  lessee  to  construct  and  operate  the  de\'ice  for  a  limited  time.  In- 
stead of  erecting  a  railway  itself  and  receiving  all  the  receipts  from 
its  operation,  it  gave  the  lessee  the  right  to  construct  and  operate  it 
by  pa\ing  the  lessor  a  certain  percentage  of  the  receipts.  At  any 
time,  however,  the  lessor  had  the  right,  by  its  cashier,  to  receive  all 
the  receipts  from  the  operation  of  the  device,  and  thereby  practically 
control  the  financial  part  of  the  operation  of  the  railway.  As  con- 
clusively showing,  however,  that  the  improvement  was  to  be  perma- 
nent, it  was  agreed  that  the  railway  should  become  the  property'  of 
the  lessor  at  the  termination  of  the  lease.  This  stipulation,  taken  in 
connection  with  the  other  provisions  of  the  lease,  leaves  no  doubt  of 
the  intention  of  the  parties  at  the  time  of  the  execution  of  the  lease 
and  the  construction  of  the  device.  If,  as  claimed  by  the  lessee,  the 
railway  was  intended  to  be  a  trade  fixture  removable  during  the 
term,  contrary  to  the  imphed  covenant  that  it  should  remain  during 
the  term  and  the  express  covenant  that  it  was  to  revert  to  the  lessor 


SECT.  I./  KINNEAR    V.    SCENIC    RAILWAYS    CO.  657 

at  the  close  of  the  term,  the  parties  should  have  so  stipulated  in  their 
contract.  Presumably  the  parties  intended  exactly  what  they 
agreed  to  in  the  lease.  They  have  there  contracted  that  the  device 
shall  revert  to  the  lessor  at  the  end  of  the  lease.  Manifestly  this 
stipulation  was  to  enable  the  lessor  to  continue  its  use  on  the  park 
premises.  The  lessor  could  advantageously  utilize  it  at  the  very  place 
it  was  constructed;  and  while  it  could  be  removed  by  the  lessee,  yet 
it  would  be  at  a  loss  to  him.  There  was  therefore  a  substantial  reason 
why  the  device  should  remain  on  the  premises  at  the  place  it  was 
constructed,  and  this'must  be  considered  in  determining  the  intention 
of  the  parties  as  disclosed  by  their  agi-eement. 

The  leasehold  could  be  purchased  by  the  lessor  at  the  end  of  any 
park  season  during  the  continuance  of  the  lease.  This  does  not  show, 
however,  that  it  was  not  the  intention  of  the  parties  that  the  railway 
should  not  permanently  remain  in  the  park.  It  is  simply  a  stipula- 
tion in  the  agreement  that  the  leasehold  acquired  by  the  lessee  shall 
become  the  property  of  the  lessor  by  the  payment  of  the  stipulated 
sum.  The  lessor  could  avail  itself  of  this  option,  or  it  could  await  the 
termination  of  the  lease  and  pay  nothing.  The  lessee  could  not  remove 
the  device  on  failure  of  the  lessor  to  exercise  the  option.  The  lessee 
company  was  compelled  to  allow  it  to  remain  on  the  park  premises 
whether  the  lessor  exercised  its  option  to  purchase  or  not.  An  execu- 
tion creditor  of  the  lessee  could  not  have  levied  upon  and  sold  the 
railway,  nor  could  the  purchaser  at  such  sale  have  removed  it.  That 
manifestly  would  have  been  a  \'iolation  of  the  contract  between  the 
parties.  The  railway  was  not  subject  to  the  control  of  the  lessee  or 
its  creditors  to  the  extent  of  permitting  its  removal  from  the  lessor's 
premises  during  a  continuance  of  the  term.  The  lessor  had  a  right 
not  only  to  have  the  railway  remain  on  the  park  premises,  but  also 
to  have  it  operated  thereon  so  that  it  could  receive  its  per  cent  of 
gross  receipts  during  the  lease.  The  removal  of  the  property  by  the 
lessee  or  its  creditors  would  have  been  a  deprivation  of  this  right 
which,  on  application  of  the  lessor,  the  courts  would  prevent.  The 
clear  and  undoubted  purpose,  therefore,  was  that  the  railway  should 
remain  on  the  park  premises  during  the  continuance  of  the  lease  and 
thereafter  revert  to  the  lessor. 

As  the  agreement  between  the  parties  fixes  the  character  of  the 
im.provement,  we  need  not  determine  whether  the  device  is  a  trade 
fixture  and  w^ould  have  been  removable  during  the  term  in  the  ab- 
sence of  an  agreement  declaring  it  to  have  been  pemianently  an- 
nexed to  the  real  estate.  The  learned  counsel  for  the  appellant  com- 
pany has  furnished  us  an  exhaustive  brief,  but  none  of  the  cases 
control  this  case  in  its  favor.  In  the  cases  cited  by  the  counsel  in 
which  there  was  an  agreement,  the  court  construed  the  contract 
to  authorize  the  removal  of  the  improvement.  In  Thompson  Scenic 
Railway  Company  v.  Young,  90  Md.  278,  cited  by  the  appellant,  it 


658  KINNEAE    V.    SCENIC    RAILWAYS    CO.  [cHAP.  IV. 

was  specifically  provided  that  the  right  and  possession  of  the  prop- 
erty should  remain  in  the  contractor  (the  claimant)  and  should  not 
vest  in  the  tenant  for  whom  it  was  constructed  until  it  was  paid  for. 
Hence  it  was  held  that  on  failure  of  the  tenant  without  having  paid 
for  the  railway,  it  did  not  become  a  part  of  the  realty  and  belong  to 
the  landlord.  Hill  v.  Sewald,  53  Pa.  271,  was  simply  a  hiring  of  chat- 
tels and  there  was  no  intention  of  annexing  them  to  the  freehold.  In 
Lemar  v.  Miles,  4  Watts,  330,  the  fixture  was  held,  under  the  con- 
tract, to  be  personal  property,  and  that  the  event  had  not  occurred 
which  was  to  make  it  the  property  of  the  landlord.  This  case  was 
followed  in  Watts  v.  Lehman,  107  Pa.  106.  Both  cases  were  between 
landlord  and  tenant.  But  even  in  such  cases  it  has  been  distinctly 
ruled  by  this  court  in  Harris  v.  Kelley,  10  Sadler,  185,  that  a  creditor 
could  not  seize  and  sell  the  personal  property  placed  by  a  tenant  on 
leased  property  under  a  lease  containing  a  clause  providing  that  "all 
improvements  erected  or  placed  in  said  building  to  be  and  remain  at 
the  expiration  of  this  lease  the  property  of  the  lessor." 

But  the  case  in  hand  is  not  between  landlord  and  tenant,  but  be- 
tween one  who  holds  title  to  the  premises  by  virtue  of  a  sale  on  a 
judgment  obtained  on  a  mortgage  given  prior  to  the  lease,  and  a 
lessee  of  the  mortgagor.  We  have  been  referred  to  no  case  which  rules 
that  the  property  in  question  would  be  held  to  be  a  trade  fixture  with 
the  title  in  the  lessee  as  against  a  prior  mortgagee  under  the  circum- 
stances of  this  case.  The  same  rule  as  to  ownership  of  property  in 
chattels  annexed  to  realty'  prevails  between  a  mortgagor  and  mort- 
gagee as  between  a  grantor  and  grantee  {Gunderson  v.  Swarthout, 
[Wis.]  76  Am.  St.  Rep.  860;  McFadden  v.  Allen,  134  N.Y.  489) ;  and 
in  either  case  it  operates  more  strongly  in  favor  of  the  mortgagee  or 
grantee  than  the  landlord  where  his  title  is  assailed  by  a  lessee. 

We  are  clear  that  under  the  contract  in  this  case  the  scenic  railway 
was  placed  on  the  lessor's  realty  as  a  permanent  improvement,  and 
that  such  was  the  intention  of  both  parties  at  the  time  of  the  con- 
struction of  the  device.  The  parties  might  have  provided  otherwise 
but  they  did  not  do  so,  and  in  the  language  of  Chief  Justice  Paxson 
in  Carver  v.  Gough,  153  Pa.  225,  229:  "While  it  may  be  a  hardship  to 
the  appellant  to  deny  his  right  to  remova  the  buildings,  we  cannot 
see  our  way  clear  to  come  to  any  other  conclusion  consistent  with  the 
recognized  rules  of  law." 

The  decree  of  the  court  below  is  afl&rmed. 


SECT.  I.]  STATE    V.    MARTIN.  659 

STATE  V.   MARTIN. 

141  N.C.   832.     1906. 

Indictment  against  Reed  Martin,  heard  by  Judge  R.  B.  Peebles 
and  a  jury,  at  the  February  Term,  1906,  of  the  Superior  Court  of 
Forsyth. 

The  defendant,  Reed  Martin,  was  indicted  with  Henry  Revels  for 
wilfully  and  wantonly  injuring  an  electric  street  car  by  breaking  its 
■windows  with  a  rock.  The  grand  jury,  as  appears  from  the  endorse- 
ments on  the  indictment,  returned  "not  a  true  bill"  as  to  Henry 
Revels  and  a  "true  bill"  as  to  Reed  Martin. 

Walker,  J.  The  learned  counsel  for  the  defendant  in  his  argument 
before  us  relied  chiefly  upon  the  position  that  the  street  car  was  not 
personal  property,  and  therefore  that  the  alleged  offense  was  not 
within  the  language  or  the  meaning  of  section  3676  of  the  Revisal. 
He  therefore  contended  that  the  judgment  should  be  arrested.  It 
does  not  appear  from  the  indictment  where  the  car  was  when  it  was 
injured  by  the  defendant,  but  the  evidence  shows  that  it  was  then 
being  operated  on  the  track  of  the  Fries  Power  Company  in  the  city 
of  Winston.  The  defendant's  prayer  for  instructions  is,  perhaps,  suf- 
ficient to  raise  this  question,  apart  from  the  motion  in  arrest  of  judg- 
ment, though  it  does  not  distinctly  point  out  this  as  a  defect  in  the 
evidence  and  seems  to  have  been  intended  to  apply  only  to  the  ques- 
tion of  variance.  We  will  assume  that  the  point  is  sufficiently  pre- 
sented, as  it  was  clearly  intended  to  be. 

The  method  of  changing  property,  personal  in  its  nature,  into  re- 
alty is  well  settled  in  the  law.  Such  property  does  not  become  realty 
by  mere  use  in  connection  with  the  land,  for  if  that  were  true,  imple- 
ments of  husbandry,  though  used  only  for  agricultural  purposes, 
would  thereby  become  a  part  of  the  land.  Whether  or  not  a  chattel 
has  become  a  part  of  the  realty  must  to  a  great  extent  depend  upon 
the  facts  of  the  particular  case.  The  mere  intention  to  make  it  a  part 
of  the  freehold,  though  it  may  enter  largely  into  the  determination 
of  the  question  of  permanency  (Foote  v.  Gooch,  96  N.C.  270),  is  not, 
by  itself,  sufficient  for  the  purpose  of  making  it  so.  There  must  be 
some  kind  of  physical  annexation  of  the  thing  to  the  land,  though  the 
nature  and  strength  of  the  union  is  not  material,  if,  in  fact,  it  be 
annexed.  The  annexation  is  in  some  cases  by  gravitation  alone  or,  in 
other  words,  the  thing  is  kept  in  position  by  its  own  weight,  as  in  the 
case  of  the  planks  laid  down  as  the  upper  floor  of  a  gin  house  and  used 
to  spread  cotton  seed  upon,  though  not  nailed  or  otherwise  fastened 
to  the  building.  Bnjan  v.  Lawrence,  50  N.C.  337;  Latham  v.  Blakely, 
70  N.C.  368.  In  such  a  case  the  planks  are  necessary  for  the  com- 
pletion of  the  structure  and  essential  to  its  occupation,  use  and  enjoy- 
ment for  the  purpose  of  the  trade  or  business  to  which  it  is  adapted 


660  STATE    V.    MARTIN.  [CHAP.  IV. 

and  has  been  appropriated.  Latham  v.  Blakely,  supra;  Railroad  v. 
Deal,  90  N.C.  110.  They  have,  as  it  were,  a  permanent  and  fixed 
position,  and  are  in  a  certain  sense  stationary  —  not  movable,  so  as 
to  be  in  one  place  to-day  and  in  another  to-morrow.  "The  very  idea 
of  a  fixture,"  says  the  court,  in  Beardsley  v.  Ontario  Bank,  31  Bar- 
bour, at  p.  630,  "is  of  a  thing  fixed  or  attached  to  something  as  a 
permanent  appendage,  and  implies  firmness  in  position.  But  that 
which  becomes  by  annexation  a  part  of  the  soil  is  something  more 
than  a  fixture,  and  requires  at  least  as  much  permanence  as  to  con- 
stitute a  fixture.  The  maxim,  Quicquid  -plantaiur  solo,  solo  cedit, 
which  tersely  expresses  the  principle,  makes  the  affixing  of  the  chat- 
tel to  the  soil  the  test  by  which  it  is  declared  to  belong  to  the  soil. 
Hence,  courts,  in  determining  the  questions  that  have  arisen,  have 
looked  at  the  mode  and  intention  of  annexation,  the  object  and  cus- 
tomary use  of  the  thing  annexed,  and  in  determining  the  intention, 
the  character  of  the  claimant  has  had  its  weight."  And  again  at  page 
635,  the  court,  in  discussing  the  difference  between  railroad  cars  and 
a  loom  in  a  factory,  says  that  the  latter  are  permanently  placed, 
although  not  strongly  affixed,  while  rolling  stock  is  incapable  of  per- 
manence or  of  being  annexed  in  any  one  place,  as  it  is  intended  for 
and  the  whole  use  is  in  its  locomotive  facilities,  and  the  court  then 
proceeds:  "The  term  by  which  it  is  ordinarily  designated,  'rolling 
stock,'  implies  the  very  reverse  of  annexation  and  a  permanent  fix- 
ture. It  is  essential  to  the  successful  operation  of  the  railroad,  but  is 
not  a  part  of  the  railroad  itself.  It  is  an  accessory  to  the  trade  and 
business  of  the  road,  and  not  to  the  road  itself.  The  road  is  com- 
pleted when  the  bed  is  gi-aded,  the  superstructure  laid,  the  rails  put 
down,  and  everything  is  ready  for  the  reception  of  the  locomotives 
and  cars;  it  is  equipped  when  the  rolling  stock  and  all  other  necessary 
appliances  and  facilities  for  business  are  finished  and  put  upon  it  for 
use."  That  seems  to  be  the  leading  case  in  the  books.  The  opinion 
delivered  by  Judge  Allen  (afterwards  judge  of  the  Court  of  Appeals) 
is  devoted  to  a  careful  discussion  of  the  subject  and  goes  fully  into 
the  authorities.  It  is  well  considered  and  has  been  followed  as  a 
controlling  precedent  in  several  subsequent  cases.  A  decision  by  the 
same  court,  in  which  the  question  is  also  learnedly  and  ably  treated 
and  the  same  conclusion  reached,  is  Stevens  v.  Railroad,  31  Barbour, 
590.  The  Court  of  Appeals  of  New  York  has  expressly  affirmed 
those  cases  and  approved  the  pnnci]:)les  upon  which  they  were  de- 
cided. Randall  v.  Elwell,  52  N.Y.  521 ;  Hoyle  v.  Railroad,  .54  N.Y. 
314.  To  the  same  effect  are  State  Treasurer  v.  Railroad,  28  N.J.L.  21, 
and  Williamson  v.  Railroad,  29  N.J.  Eq.  311.  In  the  last  cited  case 
it  is  said,  at  pages  329  and  331,  "The  criterion  for  determining 
whether  property  ordinarily  regarded  as  personal  property  becomes 
annexed  to  and  part  of  the  realty,  is  the  union  of  three  requisites:  1. 
Actual  annexation  to  the  realty  or  something  appurtenant  thereto. 


SECT.  I.]  STATE    V.    MARTIN.  661 

2.  Application  to  the  use  or  purpose  to  which  that  part  of  the  realty 
with  which  it  is  connected  is  appropriated.  3.  The  intention  of  the 
party  making  the  annexation  to  make  a  permanent  accession  to  the 
freehold.  Tested  by  the  foregoing  criterion,  it  is  manifest  that  the 
rolling  stock  of  a  railroad  must  be  regarded  as  chattels  which  have 
not  lost  their  distinctive  character  as  personalty  by  being  affixed  to 
and  incorporated  with  the  realty.  It  is  true  that  engines  and  cars  are 
adapted  to  move  on  the  track  of  the  railroad,  and  are  necessary  to 
transact  the  business  for  which  the  railroad  was  designed.  But  unat- 
tached machinery  in  a  factory,  the  implements  of  husbandry  on  a 
farm,  and  furniture  in  a  hotel,  are  similarly  adapted  for  use  in  the 
factory,  on  the  farm,  or  in  the  hotel,  and  are  equally  essential  to  the 
profitable  prosecution  of  the  business  in  which  they  are  em^ployed. 
When  regard  is  had  to  the  fundamental  and  necessary  condition 
under  which  the  law  permits  chattels  to  become  a  part  of  the  realty, 
engines  and  cars  and  the  rolling  stock  of  a  railroad  utterly  fail  to 
answer  the  requirement  of  the  law."  It  does  not  appear  in  this  case 
that  the  power  com.pany  owned  the  land  on  which  its  rails  were  laid 
and  over  which  its  cars  ran.  Indeed,  it  must  be  that  it  did  not,  and 
this  is  the  fair  inference.  The  onty  right  it  had,  in  respect  to  the  land, 
was  a  license  to  use  the  streets  of  the  city  for  the  operation  of  its 
line  of  railway.  This  being  so,  it  had  no  land  of  its  own  to  which  it 
could  annex  its  personal  property  and  thereby  convert  it  into  realty. 
Having  only  a  right  to  use  the  land  for  a  definite  purjoose  and  subject 
to  its  joint  occupation  and  use  by  the  city  and  its  citizens,  so  far  as 
they  did  not  interfere  with  or  obstruct  the  use  by  the  company,  we 
cannot  suppose  that  either  of  the  parties  intended  that  the  nature  of- 
the  property,  that  is  the  cars,  should  be  changed  from  personalty  into 
that  of  realty.  There  is  no  valid  reason  for  holding  that  such  a 
change  was  contemplated  or  that  it  was  wrought  by  a  mere  use  of  the 
streets  in  the  manner  already  described.  The  cars  were  in  no  way 
actually  and  physically  attached  to  the  realty,  nor  were  they  con- 
structively so  annexed,  the  latter  method  im.plj^ing  that  there  exists 
both  adaptation  to  the  enjoyment  of  the  land  and  localization  in  use 
as  obvious  elements  of  distinction  from  mere  chattels  personal,  which 
are  movable  and  intended  to  be  so.  While  there  is  here  an  adapta- 
tion to  use,  there  is  no  annexation,  no  immobility  from  weight  and 
no  localization  in  use.  Were  the  sam,e  contrivance  adopted  by  a 
tenant  for  the  purpose  of  carrying  on  his  trade  upon  leased  lands,  his 
right  to  remove  both  cars  and  rails  would  seem  to  be  bej^ond  ques- 
tion. Hoyle  V.  Railroad,  supra;  Moore  v.  Valentine,  77  N.C.  188; 
Overman  v.  Sasser,  107  N.C.  432;  Elwes  v.  Mawe,  3  East.  38  (2 
Smith's  Leading  Cases,  9  ed.  1888,  p.  1423).  We  conclude  that  the 
cars  were  personalty  so  as  to  render  a  wilful  and  wanton  injury  to 
them  criminal  under  section  3676  of  the  Revisal. 


662  HOOK    V.    BOLTON.  [CKAP.  IV. 

Note.  —  Other  cases  in  which  rolling  stock  has  been  held  to  be 
personalty  are  Neilson  v.  Iowa  R.R.  Co.,  51  Iowa  184;  Williamson  v. 
N.J.  Southern  R.R.  Co.,  29  N.J.  Eq.  311,  327;  Hoyle  v.  Plattshurgh 
R.R.  Co.,  54  N.Y.  314;  Chicago  Ry.  Co.  v.  B<yrough  of  Ft.  Howard, 
21  Wis.  44. 

See,  contra,  Palmer  v.  Forbes,  23  111.  301. 


HOOK  V.  BOLTON. 

199  Mass.  244.     1908. 

Tort  for  the  conversion  of  certain  articles  alleged  by  the  plaintiff 
to  be  chattels  but  claimed  by  the  defendant  as  fixtures  annexed  to  a 
dwelling  house  numbered  86  on  Bloomfield  Street  in  Boston  which 
she  had  purchased  at  a  foreclosure  sale.  Writ  in  the  Municipal  Court 
of  the  City  of  Boston  dated  June  27,  1904. 

On  appeal  to  the  Superior  Court  the  case  was  tried  before  White, 
J.  At  the  close  of  the  evidence  the  plaintiff  asked  the  judge  to  give 
to  the  jury  the  following  instructions:  — 

"1.  I  rule  that  the  gas  fixtures  and  gas  chandeliers  in  the  house 
were  personal  property  as  matter  of  law,  and  did  not  pass  by  the 
mortgage,  and  that  the  plaintiff  is  entitled  to  recover  damages  for 
their  value  on  June  13,  1904. 

"2.  Ordinary  steam  radiators,  detachable  from  the  pipes,  and 
suitable  for  use  in  any  building,  are  personal  property  as  matter  of 
laAv.  If  you  find  that  the  radiators  in  question  were  radiators  of  this 
sort,  I  rule  that  they  did  not  pass  by  the  mortgage  and  the  defend- 
ant got  no  title  to  them,  and  that  the  plaintiff  is  entitled  to  recover 
as  damages  their  value  on  June  13,  1904. 

"3.  Gas  stoves  of  the  kind  described  in  the  testimony  in  this  case 
are  personal  property  as  matter  of  law ;  they  did  not  pass  by  the  mort- 
gage; the  defendant  got  no  title  to  these  stoves,  and  the  plaintiff  is 
entitled  to  recover  as  damages  their  value  on  June  13,  1904. 

"4.  Ordinary  portalile  kitchen  stoves  or  ranges,  used  principally 
for  cooking,  with  hot-water  fronts,  and  with  stovepipes  running  into 
the  chimneys,  are  personal  property  as  matter  of  law;  and  stoves  or 
ranges  of  this  character  did  not  pass  to  the  mortgagee  or  the  defend- 
ant under  the  mortgage,  but  the  plaintiff  is  entitled  to  recover  as 
damages  for  their  conversion  their  value  on  June  13,  1904. 

"5.  Ordinary  window  shades,  running  on  rollers,  and  detachable 
from  their  sockets,  are  personal  property  as  matter  of  law;  and 
window  shades  of  this  character  do  not  pass  to  the  mortgagee  or  the 
defendant  under  the  mortgage,  but  the  plaintiff  is  entitled  to  recover 
as  damages  for  their  conversion  their  value  on  June  13,  1904. 

"6.  Window  screens  and  screen  doors  of  the  ordinary  kind,  made 


I 


SECT.  I.]  HOOK    V.    BOLTON.  663 

for  temporary  use  during  the  summer  months  to  keep  out  flies  and 
other  insects,  bought  ready  made  without  being  specially  manu- 
factured to  fit  this  house,  and  suitable  for  use  on  any  other  house  of  a 
generally  similar  character,  are  personal  property  as  matter  of  law; 
and  window  screens  and  screen  doors  of  this  character  did  not  pass  to 
the  mortgagee  or  the  defendant  under  the  mortgage,  but  the  plaintiff 
is  entitled  to  recover  as  damages  for  their  conversion  their  value  on 
June  13, 1904." 

The  judge  refused  to  give  the  instructions  requested,  and  left  it  to 
the  jury  to  determine  whether  the  articles  referred  to  in  the  requests 
for  instructions  had  become  a  part  of  the  real  estate  by  being  an- 
nexed thereto,  or  remained  personal  property. 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  S23.40, 
including  interest  since  June  13,  1904;  and  the  plaintiff  alleged 
exceptions. 

The  case  was  argued  at  the  bar  in  December,  1907,  before  Knowl- 
TON,  C.J.,  Hammond,  Loring,  Braley,  and  Rugg,  JJ.,  and  after- 
wards was  submitted  on  briefs  to  all  the  justices. 

Knowlton,  C.J.  This  is  an  action  of  tort  to  recover  the  value  of 
certain  articles  annexed  to  a  dwelling  house  and  used  with  it.  The 
defendant  claimed  title  under  the  foreclosure  of  a  mortgage  of  the 
real  estate.  The  plaintiff  requested  the  presiding  judge  to  rule  as  to 
several  classes  of  these  articles  that  they  were  personal  property  and 
not  fixtures. 

The  principles  of  law  applicable  to  cases  of  this  kind  have  been 
stated  many  times  in  recent  opinions  of  this  court.  In  Hopewell  Mills 
v.  Taunton  Savings  Bank,  150  Mass.  519,  521,  522,  is  this  language: 
"A  machine  placed  in  a  building  is  found  to  be  real  estate  or  personal 
property  from  the  external  indications  which  show  whether  or  not  it 
belongs  to  the  building  as  an  article  designed  to  become  a  part  of  it 
and  to  be  used  with  it  to  promote  the  object  for  which  it  was  erected 
or  to  which  it  has  been  adapted  and  devoted,  an  article  intended  not 
to  be  taken  out  or  used  elsewhere,  unless  by  reason  of  some  unex- 
pected change  in  the  use  of  the  building  itself.  The  tendency  of  the 
modern  cases  is  to  make  this  a  question  of  what  was  the  intention 
with  which  the  machine  was  put  in  place."  See  also  Wentworth  v. 
Woods  Machine  Co.,  163  Mass.  28;  Ridgeway  Stove  Co.  v.  Way,  141 
Mass.  557;  Southhridge  Savings  Bank  v.  Mason,  147  Mass.  500; 
Southbridge  Savings  Bank  v.  Stevens  Tool  Co.,  130  Mass.  547;  Pierce 
v.  George,  108  Mass.  78;  Leigh  v.  Taylor,  [1902]  A.  C.  157,  161.  Of 
course  the  rule  is  the  same  as  to  articles  attached  to  a  dwelling  house 
as  it  is  as  to  machines  put  into  a  factory.  As  l^earing  upon  the  ques- 
tion, "the  nature  of  the  article  and  the  object,  the  effect,  and  the 
mode  of  annexation  are  all  to  be  considered."  Generally,  the  ques- 
tion whether  an  article  attached  to  a  building  belongs  to  the  real 
estate  is  a  mixed  question  of  law  and  fact. 


664  HOOK    V.    BOLTON.  [CHAP.  IV. 

The  application  of  these  principles  to  the  facts  of  the  present  case 
require  us  to  sustain  the  rulings  of  the  judge  as  to  all  the  articles 
except  the  gas  stoves  and  the  curtains. 

It  is  contended  that  the  gas  fixtures  should  have  been  held  to  be 
personal  property  as  matter  of  law,  on  the  authority  of  Guthrie  v, 
Jones,  108  Mass.  191,  and  Towne  v.  Fiske,  127  Mass.  12.5.  In  the 
opinion  in  each  of  these  cases  there  is  language  which  goes  beyond 
the  decision,  and  tends  to  support  the  plaintiff's  contention.  The 
later  case  merely  adopts  the  language  of  the  earlier  one.  But  in  each 
of  the  cases,  the  question  before  the  court  was  whether  the  gas  fix- 
tures, upon  the  evidence,  could  be  ruled  as  matter  of  law  to  be  a  part 
of  the  realty.  The  decision  was  simply  that  they  could  not.  We  have 
not  been  referred  to  any  case  in  which  the  court  has  decided  that  gas 
fixtures  attached  to  a  building  and  used  with  it  are,  as  matter  of 
law,  personal  property.  They  may  or  may  not  be,  according  to  the 
facts  and  circumstances  which  tend  to  show  that  they  do  or  do  not 
belong  to  the  building,  and  were  or  were  not  intended  to  remain 
with  it  as  a  part  of  it.  As  to  the  gas  fixtures,  the  steam  radiators, 
the  kitchen  range  and  the  window  screens  and  door  screens,  the 
judge  was  right  in  submitting  the  questions  to  the  jury,  with  proper 
instructions.  Allen  v.  Mooney,  130  Mass.  155;  Ridgeway  Stove  Co. 
v.  Way,  141  Mass.  557 ;  Jennings  v.  Vahey,  183  Mass.  47. 

The  gas  stove  and  the  window  shades,  running  on  rollers,  stand 
differently.  It  may  be  that  certain  apartment  houses,  or  other  dwell- 
ing houses  designed  for  occupation  by  tenants,  are  constructed  in 
some  of  our  cities  and  intended  to  be  used  in  such  a  way  that  the 
introduction  of  such  gas  stoves  and  window  shades  by  the  owner, 
to  go  with  the  house  as  a  part  of  it,  for  use  by  the  tenants,  may  here- 
after be  proved  at  a  trial.  See  Jennings  v.  Vahey,  183  Mass.  47.  It 
is  entirely  possible  that  the  mode  of  construction  and  use  of  certain 
kinds  of  houses  may  be  such  that  articles  of  this  kind  will  be  made  a 
part  of  the  house  for  permanent  retention  and  use  in  the  places  where 
they  are  put.  If  it  becomes  a  practice  to  build  and  use  houses  in 
such  a  way  these  articles  may  be  put  in  as  fixtures.  As  to  the  appli- 
cation of  the  law,  we  agree  with  Lord  Halsbury  in  what  he  said  in 
Leigh  v.  Taylor,  [1902]  App.  Cas.  157,  161,  in  regard  to  the  decisions 
of  the  courts:  "The  facts  have  been  regarded  in  different  aspects, 
according  to  the  fashion  of  the  times,  the  mode  of  ornamentation, 
and  the  mode  in  which  houses  were  built,  and  the  degree  of  attach- 
ment which  from  time  to  time  became  necessary  or  not,  according 
to  the  nature  of  the  structure  which  was  being  dealt  with." 

In  the  present  case  we  discover  no  evidence  to  warrant  the  jury 
in  finding  that  the  gas  stove  and  window  shades  were  a  part  of  the 
realty.  So  far  as  appears,  the  building  in  question  was  an  ordinary 
dwelling  house  for  a  single  family,  and  there  is  nothing  to  show  that 
it  was  intended  to  be  occupied  or  used  differently  from  conunon 


SECT.  I.]  HOOK    V.    BOLTON.  G6o 

dwelling  houses.  These  were  ordinary  articles  of  merchandise,  not 
peculiarly  fitted  for  use  in  this  house,  were  of  a  standard  pattern, 
loosely  affixed  and  easily  removed,  and  were  of  the  nature  of  per- 
sonal property.  They  were  put  into  the  house  by  the  mortgagor, 
and  were  of  a  kind  of  articles  which  usually  are  carried  away  by  an 
outgoing  occupant.  There  was  nothing  to  show  that  the  owner  in- 
tended to  annex  them  as  a  permanent  addition  to  the  real  estate. 
We  think  upon  the  evidence,  the  judge  was  wrong  in  submitting  to 
the  jury  the  question  whether  they  were  a  part  of  the  realty. 

Exceptions  sustained. 

Note.  —  See,  accord,  Cunningham  v.  Seaboard  Realty  Co.,  67  N.J. 
Eq.  210. 

In  Capehart  v.  Foster,  61  ]\Iinn.  132,  the  court  said  (p.  133) :  "  Dur- 
ing all  of  said  time  these  gas  fixtures  were  screwed  to  the  ends  of  the 
gas  pipes  projecting  from  the  walls  and  ceilings,  and  can  be  readily 
unscrewed.  It  is  held  by  the  great  weight  of  authority  that,  under 
such  circumstances,  such  gas  fixtures  are  not  a  part  of  the  realty, 
even  as  between  vendor  and  vendee  or  mortgagor  and  mortgagee; 
that  they  are  merely  a  part  of  the  furniture  of  the  room,  —  a  sub- 
stitute for  the  lamps  and  lamp  holders,  candlesticks  and  chandeliers, 
formerly  used  to  hold  candles.  McKeage  v.  Hanover  Ins.  Co.,  81 
N.Y.  38;  Jarechi  v.  Philharmonic  Soc,  79  Pa.  St.  403;  Towne  v. 
Fiske,  127  Mass.  125;  Montague  v.  Dent,  10  Rich.  Law,  135;  Rogers 
v.  Crow,  40  Mo.  91;  Ewell,  Fixt.  299.  While  this  doctrine  is  rather 
doubtful  in  principle,  it  is  too  w^ell  established  as  the  law  of  the 
country  generally  to  be  now  overturned." 

Electric  light  fixtures  were  held  to  be  realty  in  Canning  v.  Owen, 
22  R.I.  624. 

Hot-air  furnaces  were  held  to  be  realty  in  Stockwell  v.  Campbell, 
39  Conn.  362;  Thielman  v.  Carr,  75  111.  385.  (But  cf.  Clark  v.  Skelton, 
208  Mass.  284.)  So,  of  a  boiler,  piping  and  radiators  used  for  heating. 
Dame  v.  Wood,  75  N.H.  38.  So,  of  a  hot-water  heating  apparatus. 
Young  v.  Hatch,  99  Me.  465.  So,  of  steam  radiators.  Capehart  v. 
Foster,  61  Minn.  132.  (But  see,  contra.  National  Bank  v.  North,  160 
Pa.  303.)  So,  of  "dog  grates."    Monti  v.  Barnes,  [1901]  1  K.B.  205. 

Storm  windows  and  doors  were  held  to  be  realty  in  Roderick  v. 
Sanborn,  106  Me.  159;  Fish  Co.  v.  Young,  127  Wis.  149.  But  see, 
contra,  Peck  v.  Batchelder,  40  Vt.  233. 

Bathtubs  were  held  to  be  realty  in  Cohen  v.  Kyler,  27  Mo.  122. 

Window  screens  were  held  to  be  realty  in  Cunningham  v.  Sea- 
board Realty  Co.,  67  N.J.  Eq.  210. 

Carpets  and  curtain  poles  were  held  to  be  personalty''  in  Manning 
V.  Ogden,  70  Hun  (N.Y.)  399. 

A  piece  of  ornamental  statuary,  on  the  grounds  surrounding  a 
dwelling  house,  was  held  to  be  realty  in  Snedeker  v.  Warring,  12 
N.Y.  170. 


666  CHILDRESS    V.    WRIGHT.  [CHAP.  IV. 

CHILDRESS  V.  WRIGHT. 

2  Cold.  (Tenn.)  350.     1865. 

MiLLiGAN,  J.,  delivered  the  opinion  of  the  court. 

This  case  originated  before  a  Justice  of  the  Peace  of  Davidson 
County.  The  warrant  is  in  trespass,  and  the  damages  are  claimed  for 
the  alleged  unauthorized  removal  of  a  small  wooden  house,  which  a 
sutler  had  erected  on  the  lands  of  the  defendant.  The  magistrate 
gave  judgment  for  the  plaintiff  below,  and  the  defendant  appealed 
to  the  Circuit  Court,  when,  upon  the  agi'eement  of  the  parties,  the 
cause  was  tried  by  the  presiding  judge,  without  the  intervention  of 
a  jury.  The  justice's  judgment  was  affirmed,  and  an  appeal  prose- 
cuted to  this  court. 

The  facts  necessary  to  be  noticed,  are  as  follows,  viz:  During  the 
time  this  part  of  the  State  was  occupied  by  the  Federal  anny,  a  regi- 
ment of  soldiers  encamped  on  the  lands  of  the  defendant,  and  a  sut- 
ler built  a  house  thereon,  which  afterwards  he  sold  to  the  defendant 
in  error  for  forty-five  dollars.  The  building  was  constructed  of 
wood,  and  the  planks,  which  constituted  a  part  of  it,  were  nailed  to 
the  upright  posts  and  studding.  The  freehold  upon  which  it  was 
erected,  was  owned  by  the  defendant;  and  after  the  removal  of  the 
troops,  he  declared  his  puii^ose  to  disregard  the  sale,  and  to  appro- 
priate the  building  to  his  own  use.  And  thereupon  he  was  told  by 
the  defendant  in  error,  she  would  sue  him.  He  disregarded  this  ad- 
monition, and  hauled  off  the  plank  and  applied  them  to  other  pur- 
poses. And  this  action  is  brought  to  recover  the  value  of  the  house. 

It  is  insisted,  under  this  state  of  the  facts,  that  the  sale  by  the 
sutler  to  the  plaintiff  was  utterly  void,  and  communicated  no  title 
to  the  house;  that  it  was  a  fixture,  and  attached  to  the  freehold.  The 
law  on  that  subject,  we  think,  is  well  settled.  By  the  common  law, 
everything  affixed  to  the  freehold  was  subject  to  the  law  of  the 
freehold.  But  in  more  modern  times,  the  rigor  of  this  rule  has  been 
greatly  relaxed  in  favor  of  tenants,  and  fixtures  erected  for  the  bene- 
fit of  trade.  But  in  the  case  of  DeGraffenreid  v.  Scruggs,  4  Hum. 
454,  this  court  said:  "As  between  executor  and  heir,  and  between  the 
vendor  and  vendee,  the  original  rule  prevails,  and  whatever  is 
affixed  to  the  freehold  passes  with  it."  See,  also,  2  Kent's  Com. 
345-46. 

If  such  is  the  rule  between  executor  and  heir,  and  vendor  and 
vendee,  much  more  is  it  applicable  between  a  wrongdoer  and  the 
rightful  owner  of  the  freehold.  The  house  in  controversy,  so  far  as 
the  record  discloses  the  facts,  was  erected  without  the  permission 
of  the  owner  of  the  freehold,  or  without  any  order  of  the  mihtary 
commander  encamping  his  troops  on  the  land ;  and  when  once  erected, 


SECT.  I.]  DAME    V.    DAME.  667 

and  attached  to  the  freehold,  it  passed  under  the  right  of  the  soil, 
and  could  not  be  sold  and  transferred  by  the  sutler  who  erected  it. 
The  judgment  is  reversed,  and  a  new  trial  awarded. 

Note.  —  See,  accord,  Williams  v.  Vanderbilt,  145  111.  238,  251; 
Goddard  v.  Bolster,  6  Me.  427;  First  Parish  in  Sudbury  v.  Jones,  8 
Cush.  (Mass.)  184;  Mitchell  v.  Bridgman,  71  Minn.  360;  Stilhnan  v. 
Hamer,  8  Miss.  421;  Doscher  v.  Blachision,  7  Oreg.  143;  Albert  v. 
Uhrich,  180  Pa.  283;  Huehschmann  v.  McHenry,  29  Wis.  655.  CJ. 
Pennyhecker  v.  McDougal,  48  Cal.  160  (erections  on  government 
land) . 

If  B,  having  the  power  of  eminent  domain,  erects  structures  on 
the  land  of  A,  and  later  condemns  such  land,  B  is  not  obliged  to  pay 
A  for  the  structures  so  erected.  McClarren  v.  Jefferson  School 
Township,  169  Ind.  140;  Justice  v.  Nesquehoning  R.R.  Co.,  87  Pa.  28. 

If  C  takes  the  chattels  of  B,  and  affixes  them  to  the  realty  of  A, 
they  become  the  property  of  A.  Peck-Hammond  Co.  v.  Wahiid  Ridge 
School  District,  93  Ark.  77;  Voarhees  v.  McGinnis,  48  N.Y.  278.  But 
not  if  they  may  be  removed  from  the  realty  without  doing  material 
injury  to  the  realty.  Shoemaker  v.  Simpson,  16  Kan.  43;  Cochran  v. 
Flint,  57  N.H.  514. 

B  may  wrongfully  take  the  chattels  of  A,  and  so  annex  them  to 
B's  land  that  they  cease  to  be  the  property  of  A.  Salter  v.  Sample, 
71  111.  430;  Ricketts  v.  Dorrel,  55  Ind.  470  (p.  167,  supra);  Peirce 
v.  Goddard,  22  Pick.  (Mass.)  559.  But  cf.  Eisenhauer  v.  Quinn,  36 
Mont.  368. 


DAME  V.  DAME. 

38  N.H.  429.     1859. 

Petition  for  a  new  trial.  The  petition  sets  forth  that,  in  1842, 
Timothy  Dame  was  possessed  of  a  tract  of  land  in  Farmington, 
containing  twelve  acres,  more  or  less,  of  which  the  boundaries  are 
stated.  In  that  year  the  petitioner,  Edward  Dame,  by  permission 
of  said  Timothy  Dame,  erected  on  said  tract  a  dwelUng-house  and 
barn,  of  the  value  of  $500. 

On  the  13th  of  January,  1853,  Timothy  Dame  conveyed  said  land 
by  deed  of  warranty  to  Daniel  W.  Dame  and  Isaac  Worster,  the 
petitionees,  reserving  the  house  and  barn,  erected  as  aforesaid  by 
the  petitioner,  with  the  right  to  remove  the  same. 

October  26,  1855,  said  Timothy,  in  consideration  of  one  dollar, 
released  to  said  Dame  and  Worster  his  right,  title  and  interest  in 
the  house  and  barn  aforesaid. 

On  the  2d  of  January,  1854,  Dame  and  Worster  procured  from 


668  DAME    V.    DAJVIE.  [CHAP.  IV. 

the  Court  of  Common  Pleas  for  the  county  of  Strafford  a  writ  of 
attachment,  and  caused  it  to  be  served  on  the  petitioner,  and  therein 
demanded  of  him  a  certain  messuage,  it  being  the  same  land  before 
described.  By  accident,  mistake  or  misfortune,  the  attorneys  em- 
ployed by  the  petitioner  filed  a  plea  or  answer,  in  which  they  claimed 
for  him  a  title  to  an  undi\dded  moiety  of  said  land,  and  disclaimed 
the  residue.  The  suit  was  continued  from  that  term  till  March, 
1855;  at  which  term,  through  accident,  mistake  or  misfortune,  a  de- 
fault was  entered  and  judgment  rendered  for  the  plaintiffs,  a  writ  of 
possession  issued,  and  the  petitioner  was  turned  out  of  possession 
of  said  buildings,  and  deprived  of  the  right  of  possession  and  right 
of  removal  of  the  same.  He  therefore  prays  a  new  trial,  or  other 
relief. 

The  allegations  of  the  petition  are  substantially  sustained  by  the 
evidence. 

Bell,  J.  The- rules  of  the  common  law,  relating  to  the  rights  of 
lessor  and  lessee,  in  buildings  and  other  structures  erected  by  the 
lessee  upon  the  property  leased,  and  in  such  things  as  are  aimexed 
and  affixed  to  any  buildings  or  structures  thereon,  are  liable  to  be 
changed  and  modified  in  any  way  by  the  agreements  made  by  the 
parties  on  the  subject;  and,  so  far  as  such  agi'eements  extend,  the 
question  is  no  longer  what  is  the  conmaon  law,  but  what  have  the 
parties  agreed.  Am.  &  Fer.  on  Fix.  97,  103,  104;  Broom's  Maxims 
280;  Dnbcris  v.  Kelleij,  10  Barb.  496;  2  Smith's  L.  C.  87;  Wall  v. 
Hi7ids,  4  Gray  273;  Smith's  L.  &  T.  352;  Foley  v.  Addenbrooke,  13 
M.  &  W.  174. 

It  is  in  accordance  with  this  principle  that  it  has  been  settled  by 
many  decisions,  that  where  a  building  is  erected  by  one  man  upon 
the  land  of  another,  by  his  permission,  upon  an  agreement  or  under- 
standing that  it  may  be  removed  at  the  pleasure  of  the  builder,  it 
does  not  become  a  part  of  the  real  estate,  but  continues  to  be  a  per- 
sonal chattel,  and  the  property  of  the  person  who  erected  it.  In  such 
case  it  is  immaterial  what  is  the  purpose,  size,  material,  or  mode  of 
construction  of  such  building.  Van  N'ess  v.  Pacard,  2  Pet.  137;  Tay- 
lor L.  &  T.,  sec.  546.  It  is  merely  personal,  and  is  governed  by  the 
same  rules  as  any  other  article  of  personal  property;  as,  for  instance, 
a  pile  of  lumber,  left  by  consent  of  the  owner  of  the  land  upon  his 
premises.  Smith  v.  Benson,  1  Hill  176. 

This  principle  has  been  recognized  and  applied  in  Wells  v.  Bannis- 
ter, 4  Mass.  514;  Doty  v.  Gorham,  5  Pick.  489;  Marcy  v.  Darling,  8 
Pick.  283;  Ashmun  v.  Williams,  8  Pick.  404;  Rogers  v.  Woodbury, 

15  Pick.  156;  Wall  v.  Hinds,  4  Gray  273;  and  see  Washburn  v.  Sproat, 

16  Mass.  449;  in  Osgood  v.  Howard,  6  Gr.  452;  Russell  v.  Richards, 
1  Fairf.  429;  Hilborn  v.  Brown,  3  Fairf.  162;  Tapley  v.  Smith,  18 
Me.  12;  Doak  v.  Wiswell,  3  Heath  572;  Fidler  v.  Tabor,  4  Heath  519; 
Pullen  V.  Bell,  5  Heath  314;  in  Barnes  v.  Barnes,  6  Vt.  388.  with 


SECT.  I.]  DAME  V.    D.\ME.  669 

which  Leland  v.  Gassett,  17  Vt.  403,  is  not  inconsistent;  in  Curtis  Y. 
Hoyt,  19  Conn.  154;  in  Sjnith  v.  Benson,  1  Hill  176;  Smith  v.  Jenks, 
1  Denio  580;  Goddard  v.  Goidd,  14  Barb.  605;  Mott  v.  Palmer, 
1  Comst.  564;  Ombury  v.  Jo;?es,  21  Barb.  520;  in  Brearly  v.  Coa;, 
4  Zab.  287;  in  McCrackeyx  v.  //ai/,  7  Ind.  30;  in  Stilhnan  v.  Homer, 
7  How.  (Miss.)  421;  and  in  Hai-en  v.  Emery,  33  N.H.  (2  Fogg)  66. 

If  in  such  case  the  o\\Tier  of  the  land  resists  the  removal  of  such 
building,  or  otherwise  converts  it  to  his  own  use,  he  will  be  liable 
in  trover  for  the  value  of  it,  either  to  the  builder  or  his  assignee. 
Osgood  V.  Howard,  6  Gr.  452 ;  Russell  v.  Richards,  1  Fairf .  429 ;  Wans- 
borough  v.  Morton,  4  A.  &  E.  884;  Hilhoryi  v.  Brown,  3  Fairf.  162; 
Smith  v.  Benson,  1  Hill  176;  Fairharn  v.  Eastwood,  6  M.  &  W.  679; 
Tapley  v.  Smith,  18  iNIe.  12. 

But  a  mere  refusal  or  neglect  to  deliver  it,  or  to  remove  it  from 
his  premises,  upon  a  demand  for  that  pm^pose,  will  not  be  evidence 
of  a  conversion,  because  the  owner  of  the  land  owes  no  duty  to  the 
builder,  but  not  to  oppose  the  removal. 

If  the  owner  of  the  land  withdraws  his  consent  that  the  building 
should  remain,  or  puts  an  end  to  the  estate  at  will  of  the  owner  of 
the  building  in  it,  the  latter  may  enter  upon  the  land,  and  peaceably 
remove  the  building,  doing  no  unnecessary  damage  to  the  owner, 
within  a  reasonable  time,  without  being  a  trespasser;  1  Taylor  L. 
&  T.  369;  Weston  v.  Woodcock,  7  M.  &  W.  14;  Woods  v.  County  of 
Cheshire,  32  N.H.  (1  Fogg)  424;  Doty  v.  Gorham,  5  Pick.  489;  Rising 
V.  Stanard,  17  Mass.  287;  Ellis  v.  Paige,  1  Pick.  49;  because  the  pro- 
prietor of  goods  and  chattels  has  authority-  by  law  to  enter  the  land 
of  another  upon  which  they  are  placed,  and  remove  them,  provided 
they  are  there  without  his  default.  Ham.  X.  P.  169;  Bac.  Ab.,  Tresp., 
F,  1;  2  Rolle's  R.  55;  2  Rolle's  Ab.  566,  (I,  p.  9.);  Cro.  El.  329; 
1  Swift  Sys.  525. 

But  if  in  such  case  the  owner  of  the  building  suffers  it  to  remain 
an  unreasonable  time,  or  if  his  right  to  continue  it  terminates  by 
his  own  act  before  its  removal,  it  is  his  fault  that  it  remains  after- 
ward; and  if  he  enters  to  remove  it,  he  will  be  liable  in  trespass  for 
all  damage  done  by  him  to  the  owner  of  the  land,  but  not  for  the 
value  of  the  property  removed.  Webb  v.  Stanard,  Palm.  71 ;  Mumford 
v.  Whitney,  15  Wend.  386;  Miller  v.  Railroad,  6  Hill  64. 

If  the  owner  of  the  land  conveys  his  interest,  it  will  operate  as  a 
revocation  of  the  license  to  continue  the  building  upon  it;  but  the 
owner  of  the  building  will  not  be  affected  by  it  till  notice,  either 
actual  or  constructive,  of  the  revocation.  Dubois  v.  Kelly,  10  Barb. 
496;  Rising  v.  Stanard,  17  Mass.  286. 

It  has  even  been  held  that  no  interest  in  the  building  passes  by 
the  conveyance,  whether  the  purchaser  had  notice  of  the  position 
of  the  building  or  not;  Russell  v.  Richards,  1  Fairf.  429;  Dubois  v. 
Kelly,  10  Barb.  496;  Smith  v.  Benson,  1  Hill  176;  and  if  he  is  wronged, 


670  DAME    V.    DAME.  [CHAP.  IV. 

his  remedy  is  upon  the  covenants  in  his  deed ;  Mott  v.  Palmer,  1  Comst. 
564;  but  on  this  point  we  express  no  opinion. 

In  the  present  case  it  may  be  fairly  inferred,  nothing  being  stated 
to  the  contrary,  that  the  house  and  barn  here  in  question  were  con- 
structed in  the  usual  manner,  and  were,  therefore,  prima  facie  a 
part  of  the  real  estate ;  but  they  were  erected  by  the  petitioner  upon 
the  land  of  his  father,  by  his  express  assent  and  permission,  and 
upon  an  understanding,  almost  necessarily  implied  in  such  permis- 
sion, and  here  proved  by  the  reservation  of  the  father's  deed,  of  the 
right  to  remove  these  buildings.  They  did  not,  therefore,  become  part 
of  the  real  estate,  but  remained  merely  personal  chattels.  By  the 
father's  deed  to  the  defendants,  the  real  estate  alone  passed,  but 
these  chattels  did  not,  because  it  purported  to  convey  the  real  es- 
tate alone;  because  the  father  had  no  title  in  them  that  he  could 
rightfully  convey,  and  because  they  were  reserved  in  the  first  deed, 
and  the  second  gi-anted  nothing  but  a  release  of  his  claim  upon  them, 
under  the  reservation  of  the  first.  The  conveyance  to  the  defend- 
ants upon  notice  put  an  end  to  the  license  to  continue  these  build- 
ings on  the  land  sold,  or  to  remove  them;  but  the  law  gave  to  the 
petitioner  a  right  to  retain  them,  and  to  remove  them  during  a  rea- 
sonable time  after  notice  of  that  sale.  After  the  lapse  of  such  time 
they  still  remain  the  property  of  the  petitioner,  but  as  they  continue 
upon  the  land  by  his  own  fault,  he  cannot  enter  upon  the  land  to 
remove  them  without  a  trespass;  but  if  he  does  enter,  he  will  be 
liable  only  for  the  damage  which  he  does,  and  which  the  buildings 
have  caused,  and  not  for  the  value  of  them. 

On  the  other  hand,  if  the  defendants  resist  their  removal,  or  con- 
vert the  buildings  to  their  own  use,  they  will  be  answerable  to  the 
petitioner  in  trover  for  their  value;  but  as  they  are  not  bound  to 
remove  them  or  deliver  them,  or  even  to  assent  to  their  removal, 
they  will  not  be  made  liable  by  a  mere  demand  and  refusal. 

The  action  brought  by  the  defendants  was  for  the  recovery  of  the 
land  alone.  The  judgment  rendered  in  it  could  not  affect  the  peti- 
tioner's title  to  his  chattels  then  upon  the  land,  whether  they  were 
there  by  right  or  by  wrong;  nor  could  it  in  any  way  affect  the  merely 
personal  right  of  the  petitioner  to  remove  them,  or  to  recover  their 
value,  if  they  were  withheld  from  him.  The  right  to  enter  for  the 
purpose  of  removing  this  property  gives  no  seizin  or  possession  of 
the  land,  and  is  not  even  an  interest  in  land,  within  the  statute  of 
frauds.  Woods  v.  County  of  Cheshire,  32  N.H.  (1  Fogg)  424.  Such 
a  right  constitutes  no  defence  in  a  real  action,  and  we  have  found  no 
plea  in  which  any  similar  right,  or  even  a  right  to  an  easement,  has 
been  attempted  to  be  set  up  as  a  defence  to  a  real  action.  As  the  right 
of  the  petitioner  to  these  buildings  cannot  avail  in  defence  of  the 
action,  he  cannot  be  benefited  by  a  new  trial. 

The  license  \o  erect  these  buildings,  and  to  occupy  them  on  the 


SECT.  I.]  BANK    V.    WOLF.  671 

father's  land,  constituted  a  lease  at  will.  If  it  could  be  deemed  a  lease 
from  3'ear  to  year,  it  would  continue  till  terminated  by  a  notice  to 
quit,  notwithstanding  the  deed  to  the  defendants  (Doty  v.  Gorham, 

5  Pick.  489;  Birch  v.  Wright,  1  D.  &  E.  378;  Madden  v.  White,  2  D. 

6  E.  159) ;  but  as  there  was  no  rent  reserved,  or  time  of  payment 
limited,  it  must  be  deemed  a  tenancy  at  will  strictly  (Taylor  L.  &  T. 
36;  1  Swift  Sys.  95;  Wright  v.  Beard,  13  East  210);  and  was  termi- 
nated by  the  sale  of  the  property  (Taylor  L.  &  T.  37;  Ball  v.  Culli- 
more,  2  M.  C.  &  R.  120;  1  Swift  Sys.  90). 

It  is  not  necessary  to  discuss  the  question  whether  a  new  trial  will 
be  granted,  where  the  party  had  due  notice  of  the  suit,  and  em- 
ployed counsel,  and  was  defaulted  with  the  knowledge  and  assent 
of  his  counsel,  but  through  some  fault  or  mistake  of  the  counsel. 
It  would  seem  that  a  very  clear  case  of  accident,  mistake  or  misfor- 
tune must  be  sho^vn  to  induce  the  court  to  interfere. 

Petition  dismissed. 

Note.  —  By  the  weight  of  authority,  such  an  agreement,  as  that 
between  Edward  Dame  and  Timothy  Dame,  is  effective  against  a 
prior  mortgagee  of  the  realty.  See  Merchants'  Bank  v.  Stanton, 
55  Minn.  211.   See,  contra,  Clary  v.  Owen,  15  Gray  (Mass.)  522. 


BANK  V.  WOLF. 

114  Tenn.  255.     1904. 

On  the  twenty-fourth  of  January,  1899,  the  Fred  W.  Wolf  Com- 
pany entered  into  a  contract  with  the  Consumers'  Ice,  Coal  &  Cold 
Storage  Company,  whereby  the  former  sold  to  the  latter  machinery 
to  the  value  of  S14,600,  payable  in  installments,  evidenced  by  sundry 
promissory  notes.  By  the  terms  of  the  contract  the  machineiy  was 
to  remain  the  property  of  the  selling  company  until  paid  for.  There 
still  remains  unpaid  a  balance  of  about  SI 800. 

The  machinery  consisted  of  a  condenser,  an  engine,  oil  trap,  all  very 
heav]k^  articles,  and  sundry  pipes,  necessary  for  the  operation  of  an 
ice  factory.  The  condenser  and  engine  were  placed  upon  brick  foun- 
dations and  bolted  thereto.  The  oil  trap  was  Hkcwisc  bolted  to  the 
floor.  The  pipes  were  connected  with  the  condenser,  and  thence, 
through  the  building,  with  other  parts  of  the  machinery  of  the  plant 
which  was  already  in  place  at  the  time  the  contract  was  made,  the 
latter  being  a  part  of  the  old  equipment  of  the  factory.  All  of  this 
machinery  was  connected  together  in  such  a  way  as  to  form  a  com- 
plete and  homogeneous  system.  The  condenser,  the  engine,  and  the 
oil  trap  could  be  taken  out  of  the  building,  without  serious  injury 
thereto,  by  taking  off  the  taps  and  withdrawing  the  bolts.  The  other 


672  BANK    V.    WOLF.  [cHAP.  IV. 

connections  could  then  be  taken  out,  also  without  serious  injury 
thereto. 

At  the  time,  however,  that  this  machinery  was  put  in  place,  it  was 
intended  by  the  parties  that  it  should  be  permanently  attached  to 
the  freehold,  subject  only  to  the  failure  to  comply  with  the  condition 
of  payment.  None  of  the  machinery  furnished  under  the  contract 
and  so  placed  in  the  building  could  be  withdrawn  without  seriously 
impairing  the  efficiency  of  the  plant.  The  machinery  was  sold  by 
the  Fred  W.  Wolf  Company  to  the  ice  company  for  the  pui-pose  of 
being  attached  t.o  the  freehold  in  the  maimer  in  which  it  was 
attached,  and  it  was  so  fastened  thereto  with  the  knowledge  and 
consent  and  aid  of  the  said  company. 

On  April  1,  1901,  the  Consumers'  Ice,  Coal  &  Cold  Storage  Com- 
pany executed  a  mortgage  on  the  whole  plant  to  the  Union  Bank  & 
Trust  Company,  to  secure  an  issue  of  $15,000  of  bonds,  and  on  Jan- 
uary 1,  1902,  a  second  mortgage  was  placed  thereon,  in  favor  of  the 
Union  Bank  &  Trust  Companj^  as  trustees,  to  secure  $35,000  of 
bonds.  These  mortgages  were  taken  upon  the  property  in  the  belief 
that  the  machinery  above  referred  to  constituted  a  part  of  the  plant, 
and  that  the  whole  was  subject  to  mortgage.  Neither  the  trustee  nor 
the  bondholders  had  any  knowledge  or  notice  of  the  fact  that  the 
Fred  W.  Wolf  Company  had  retained  title  to  the  machinerj'-. 

The  ice  company  having  failed,  the  trust-ee  was  proceeding  to 
foreclose  the  mortgages,  whereupon  the  Fred  W.  WoK  Company 
brought  its  replevin  suit  to  recover  the  machinery.  Then  the  present 
bill  was  filed  to  enjoin  that  suit,  and  to  test  the  question  of  priority 
between  the  parties. 

The  chancellor  rendered  a  decree  in  favor  of  the  complainants, 
upholding  the  priority  of  the  mortgagees,  and  thereupon  the  seller, 
the  Fred  W.  Wolf  Company,  appealed  to  this  court,  and  has  assigned 
errors. 

Mr.  Justice  Neil.  .  .  .  When  the  facts  contained  in  the  state- 
ment are  viewed  in  the  light  of  the  foregoing  decisions,  we  think  it 
cannot  be  doubted  that  the  purpose  of  the  ice  company  in  placing 
the  machinery  in  the  building  was  to  permanently  enhance  the  value 
of  the  property  and  to  make  it  a  part  of  the  realty.  It  is  equally  clear 
that  this  purpose  was  concurred  in  by  the  seller  of  the  machinery, 
subject  only  to  the  condition  that  such  seller  should  have  a  right  to 
withdraw  it  in  case  the  purchase  money  notes  should  not  be  paid. 

The  question  to  be  determined  is  whether  this  secret  condition, 
known  only  to  the  seller  and  buyer,  should  be  held  operative  against 
an  innocent  purchaser  of  the  realty. 

We  think  this  question  should  be  decided  in  the  negative,  for  two 
reasons.  The  first  of  these  reasons  is  based  upon  the  principle  that, 
where  one  of  two  innocent  persons  must  suffer,  that  one  should  bear 
the  loss  whose  conduct  or  act  placed  it  in  the  power  of  a  third  party 


SECT.  I.]  BANK    V.    WOLF.  673 

to  impose  upon  or  deceive  another.  The  second  reason  is  to  be  found 
in  the  pohcy  of  our  law  in  respect  of  real  estate  titles.  That  poHcy  is 
opposed  to  secret  liens,  and  requires  that  the  public  records  shall  con- 
tain evidence  of  all  liens  and  incumbrances.  An  opposite  view  would 
soon  involve  titles  to  realty  in  great  confusion,  and  result  in  needless 
depreciation  of  land  values,  since  a  vendee  would  search  the  records 
in  vain  for  a  secret  agreement  between  the  vendor  and  some  prior 
owner  in  respect  of  the  fencing  or  houses,  or  mills  containing  ma- 
[jhineiy,  or  other  erection  upon  the  land.  The  purchaser  desiring  to 
buy  land  would  justly  suffer  under  the  apprehension  of  some  such 
secret  understanding  between  prior  parties,  whereby,  after  paying 
for  the  land,  he  might  be  deprived,  without  his  consent  and  without 
compensation,  of  a  considerable  portion  of  the  value  of  the  property 
that  he  supposed  he  was  buying. 

Now,  in  the  present  case,  it  appears  that  the  machinery  was  so 
placed  in  the  factory  as  to  be  prima  facie  a  part  of  the  realty  itself, 
and  the  whole  erection,  composed  of  the  building  and  the  machinery, 
was  in  the  possession  of  the  owner  of  the  land.  The  trustee  and  bond- 
holders under  the  two  mortgages  or  trust  deeds  were  justified  from 
the  appearance  of  things  in  assuming  that  the  machinery  was  in 
truth  a  part  of  the  land,  and  in  taking  such  machinery  into  estima- 
tion in  determining  the  amount  of  money  which  they  would  advance 
upon  the  entire  property.  Now  to  deprive  them  of  this  security  in 
behalf  of  the  seller  of  the  machinery,  who  retained  the  title  merely  as 
security,  and  by  a  secret  or  unrecorded  writing  between  such  vendor 
and  the  purchaser  of  the  machinery,  would  be,  in  our  judgment,  to 
sacrifice  the  substance  of  justice  to  its  mere  form. 

Note.  —  See,  accord,  Landon  v.  Piatt,  34  Conn.  517;  First  National 
Bank  of  JoUet  v.  Adam,  138  111.  483;  Bringholff  v,  Munzenmaier,  20 
Iowa  513;  Southbridge  Savings  Bank  v.  Exeter  Works,  127  Mass.  542; 
Rabeke  v.  Baer,  115  Mich.  333;  Cli?ner  v.  Wallace,  28  Mo.  556: 
Haven  v.  Emery,  33  N.H.  66,  69;  Brennan  v.  Whitaker,  15  Ohio  St. 
446;  Muir  v.  Jones,  23  Oreg.  332;  Powers  v.  Dennison,  30  Vt.  752; 
Porter  v.  Pittsburg  Bessemer  Steel  Co.,  122  U.S.  267;  Hobson  v.  Gor- 
ringe,  [1897]  1  Ch.  182. 

See,  contra,  Adams  Machine  Co.  v.  Interstate  Building  Ass'n,  119 
Ala.  97;  Russell  v.  Richards,  10  Mc.  429;  Falaenau  v.  Reliance  Steel 
foundry  Co.,  74  N.J.  Eq.  325;  Ford  v.  Cobb,  20  N.Y.  344. 


674  ■  TYSON  V.  POST.  [chap.  rv. 


SECTION  2. 
RECONVERSION  OF  FIXTURES  INTO  CHATTELS. 


TYSON  V.   POST. 

108  N.Y.  217.     1888. 

Appeals  from  orders  of  the  General  Term  of  the  Supreme  Court 
in  the  second  judicial  department,  made  May  14,  1885,  which  re- 
versed judgments  in  favor  of  plaintiffs,  entered  upon  decisions  of  the 
court  on  trial  at  Special  Term. 

These  actions  were  brought  to  foreclose  two  purchase-money 
mortgages  executed  by  defendant  Cooney  upon  certain  premises 
situate  in  Queens  County. 

There  was  attached  to  the  premises  at  the  time  of  the  sale  and 
conveyance  by  the  mortgagees  and  the  execution  of  the  mortgage 
the  plant  and  machineiy  of  two  marine  railways,  the  use  of  which 
had  been  abandoned.  The  controversy  was  as  to  these  fixtures,  of 
which  defendant  Post  claimed  to  be  the  owner.  The  negotiations 
for  the  purchase  were  between  plaintiffs  and  one  Carroll,  the  con- 
veyance was  made  to  Cooney  as  the  nominee  of  Carroll.  Defendant 
Post  claimed  that  he  advanced  the  money  to  complete  the  cash  pay- 
ment required  by  the  contract  of  purchase  under  the  understanding 
and  oral  agi-eement  of  all  the  parties  that  he  should  have  the  title 
to  said  plant  and  machinery  and  the  right  to  remove  them  at  any 
time  from  the  premises. 

Andrews,  J.  The  question  whether  the  defendant  Post  acquired 
title  to  the  plant  and  machinery  of  the  marine  railways  embraced 
in  the  plaintiffs'  mortgage,  as  security  for  the  $6200  paid  by  him 
to  the  plaintiffs  at  the  request  of  Carroll,  to  enable  the  latter  to 
complete  the  first  payment  on  the  contract  with  the  plaintiffs  for 
the  purchase  of  the  land,  does  not  depend  upon  the  character  of  the 
property,  whether  real  or  personal,  when  placed  upon  the  mort- 
gaged premises.  There  can  be  little  doubt,  however,  that  the  machin- 
ery, shafting,  rollers  and  other  articles  became,  as  between  vendor 
and  vendee,  and  mortgagor  and  mortgagee,  fixtures  and  a  part  of 
the  realty.  McRae  v.  Cejitral  Nat.  B'k,  66  N.Y.  489.  But,  as  by 
agreement,  for  the  purpose  of  protecting  the  rights  of  vendors  of 
personalty,  or  of  creditors,  chattels  may  retain  their  character  as 
chattels,  notwithstanding  their  annexation  to  the  land  in  such  a  way 
as  in  the  absence  of  an  agi'eement  would  constitute  them  fixtures 
{Ford  V.  Cobb,  20  N.Y.  344;  Sisson  v.  Hibbard,  75  id.  542),  so,  also, 


iECT.  II.]  GIBBS    V.    ESTEY.  675 

it  would  seem  to  follow,  that  by  convention  the  owner  of  land  may 
reimpress  the  character  of  personalty  on  chattels,  which,  by  annexa- 
tion to  the  land,  have  become  fixtures  according  to  the  ordinary  rule 
of  law,  provided  only  that  they  have  not  been  so  incoiporated  as  to 
lose  their  identity  and  the  reconversion  does  not  interfere  with  the 
rights  of  creditors  or  third  persons.  The  plant  and  machinery  in 
question  were  personal  property  when  placed  on  the  land,  and  the 
only  issue  presented  is.  Did  the  plaintiffs  agree  with  Post  that  he 
might  take  the  title  to  the  plant  and  machinery  for  his  security,  free 
of  the  mortgage,  and  remove  them  at  any  time  from  the  mortgaged 
premises,  thereby  reimpressing  the  property''  with  the  character  of 
personalty  ?  In  detei-mining  this  question  it  does  not  seem  to  us  to 
be  very  material  to  inquire  whether  the  deed  from  the  plaintiffs  to 
Cooney  (the  nominee  of  Carroll),  and  the  mortgage  back  embraced, 
or  was  intended  to  embrace,  the  plant  and  machinery.  Post  was 
not  a  party  to  the  instruments  and  is  not  concluded  by  them.  The 
rights  of  Post  depend  wholly  upon  his  agreement  with  the  plaintiffs, 
and  if  they  received  his  money  upon  the  agreement  that  he  should 
have  the  plant  and  machinery,  with  the  right  to  remove  them  with- 
out restriction  as  to  time,  the  agi-eement  was  valid  although  by  parol, 
and  even  if  it  contradicts  the  legal  import  of  the  mortgage,  it  being 
an  agreement  between  different  parties,  it  is  not  within  the  rule 
which  forbids  parol  evidence  to  contradict  a  written  instrument. 


GIBBS  V.  ESTEY. 

15  Gray  (Mass.)  587.     1860. 

Action  of  Tort  for  breaking  and  entering  the  plaintiff's  close 
and  digging  up  and  carrying  away  a  house.  Answer,  that  the  house 
was  the  personal  property  of  the  defendant  Estey. 

At  the  trial  in  the  superior  court  before  Rockwell,  J.,  there  was 
evidence  that  the  close  was  in  1850  owned  by  Ira  Haskell;  that  he, 
while  in  possession  of  the  land,  assented  to  the  erection  of  a  house 
thereon  by  Warren  Gibbs,  and  agreed  that  Gibbs  should  hold  the 
house  as  personal  property;  and  that  this  assent  was  given  and 
agreement  made  after  the  cellar  had  been  dug,  the  cellar  wall  and 
underpimiing  stone  laid,  the  frame  of  the  house  erected,  and  while 
the  work  of  building  was  still  going  on.  The  judge  ruled  that  such 
assent  and  agreement,  to  be  effective,  must  have  been  before  or  at 
the  time  when  the  frame  of  the  house  was  erected. 

The  judge  rejected  evidence,  offered  by  the  defendants,  of  the 
declarations  of  Solomon  Gibbs,  Haskell's  grantee  and  the  plaintiff's 
grantor,  while  in  possession  of  the  land,  that  he  neither  owned  nor 
claimed  the  house. 


676  GIBBS    V.    ESTEY.  [CHAP.  IV. 

There  was  evidence  that  Estey  bought  the  house  of  Warren  Gibbs 
as  personal  property,  and  afterwards  bought  the  equity  of  redemp- 
tion of  the  land  at  a  sale  on  execution  against  Solomon  Gibbs;  that 
he  subsequently  released  to  Solomon  the  rights  acquired  by  this  pur- 
chase, and  remarked  to  him,  at  the  time  of  delivering  the  release,  that 
he  should  abandon  his  claim  to  the  house,  as  he  had  been  advised 
by  counsel  that  he  could  not  hold  it.  The  judge  instructed  the  jurj 
that  if,  at  the  time  of  delivering  such  release,  Estey  verbally  relin- 
quished his  claim  to  the  house,  neither  he,  nor  any  one  claiming 
under  him,  could  afterwards  legally  assert  any  title  to  it,  by  virtue 
of  any  previous  title  to  it  as  personal  property. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendants 
alleged  exceptions. 

Dewey,  J.  The  plaintiff  has  acquired  an  undisputed  title  to  the 
real  estate  described  in  his  writ  by  sundry  conveyances  passing  the 
title  of  Ira  Haskell  as  he  held  the  same  at  the  date  of  his  deed  to 
Solomon  Gibbs.  It  is  conceded  that  this  title  of  Haskell  was  originally 
a  valid  one,  and  sufficient  to  pass  the  estate  in  the  land,  but  it  is 
contended  that  the  house  standing  thereon,  and  which  is  the  subject 
of  the  present  controversy,  was  the  personal  property  of  Warren 
Gibbs,  under  whom,  the  defendants  claim  title.  The  question  in  the 
case  is  therefore  whether  this  house  was  real  estate  and  passed  by 
the  various  conveyances  as  such,  or  was  personal  estate  capable  of 
being  held  and  sold  irrespectively  of  its  connection  with  the  land. 
If  it  was  a  part  of  the  realty,  it  has  duly  passed  to  the  plaintiff.  The 
general  rule  is  that  a  building  like  a  house,  erected  on  the  land,  will 
of  course  become  a  part  of  the  realty,  and  as  incident  thereto  will 
pass  with  the  land.  An  exception  to  the  rule  has  been  held  to  exist 
in  cases  where  the  owner  of  the  land  has  given  permission  to  another 
person  to  erect  a  building  upon  such  land,  to  be  held  and  enjoyed 
as  his  own  as  personal  property.  Such  separation  of  the  personal 
from  the  real  estate  to  which  it  is  attached  is  to  be  established  by 
evidence  of  assent  to  the  erection  of  the  same,  before  the  structure 
is  erected  and  has  become  attached  to  the  realty,  and  thus  had  its 
character  fixed.  That  essential  element  was  wanting  in  the  present 
case.  It  is  shown  in  this  case  that  the  time  of  giving  such  assent  was 
after  the  digging  of  the  cellar,  the  laying  of  the  cellar  wall  and  under- 
pinning stone,  and  the  erection  of  the  frame  of  the  house  thereon, 
and  while  the  process  of  further  completing  the  building  was  going 
on.  The  instruction  of  the  court,  that  such  assent,  to  be  effective, 
must  have  been  given  before  or  at  the  time  when  the  frame  of  the 
house  was  erected,  was  correct.  After  that  period  of  time,  the  build- 
ing, though  it  might  be  an  unfinished  building,  was  a  building  at- 
tached to  the  real  estate,  and  would  pass  as  such.  The  intention  of 
the  parties,  if  it  existed,  to  change  this  to  personal  property,  was 
one  which  the  law  could  not  carry  into  effect.   Richardson  v.  Cope- 


SECT.  II.]   NORTHERN  CENTRAL  RY.  CO.  V.    CANTON  CO.        677 

land,  6  Gray,  538.  Such  being  the  case,  the  house  would  in  law  pass 
by  the  various  conveyances  of  the  real  estate  upon  a  part  of  which 
it  stood. 

The  declarations  of  Solomon  Gibbs,  one  of  the  intermediate 
owners,  while  he  owmed  the  real  estate,  that  the  house  was  not  owned 
or  claimed  by  him,  would  not  defeat  the  title  legally  in  him,  and 
which  he  has  passed  to  the  plaintiff. 

It  is  unnecessary  to  consider  the  further  question  of  the  effect  to 
be  given  to  the  e^ddence  of  the  declarations  of  the  defendant  Estey, 
wholly  relinquishing  his  claim  to  the  house  at  the  time  of  making 
his  quitclaim  deed  of  the  land  to  Solomon  Gibbs,  the  grantor  of  the 
plaintiff.  In  the  view  the  court  take  of  the  case,  the  first  ground  is 
decisive  in  favor  of  the  plaintiff,  without  any  aid  from  these  declara- 
tions. 

Judgment  for  the  plaintiff. 


NORTHERN  CENTRAL  RY.  CO.  v.   CANTON  CO. 

30  Md.  347.     1868. 

Brent,  J.,  delivered  the  opinion  of  the  court. 

It  appears  from  the  facts  in  this  case,  that  the  Northern  Central 
Railway  Company,  after  the  j-ear  1855,  and  before  1859,  constructed, 
at  its  sole  cost  and  charge,  a  railway  track  upon  the  lands  of  the  Can- 
ton Company,  with  the  license  and  permission  of  the  latter.  The 
route  adopted  was  agreed  upon  between  them,  and  at  the  time  of 
the  construction  of  the  road,  the  appellant  had  reason  to  believe  it 
was  laying  its  railroad  upon  land  over  which  it  had  the  free  right  of 
way.  Whatever  may  have  been  the  misunderstanding,  as  subse- 
quently developed,  between  the  companies,  it  was  then  believed 
by  both  of  them  that  arrangements  could  be  effected  by  which  a 
continuous  road,  resulting  in  their  mutual  benefit,  would  be  con- 
structed from  some  point,  in  or  near  Baltimore  city,  on  the  main 
stem  of  the  appellant's  road  to. navigable  water.  Its  construction, 
however,  was  prevented  by  circumstances,  which  it  is  unnecessary 
for  the  purposes  of  this  case  to  notice  in  detail.  The  appellee,  satis- 
fied that  the  connection  would  not  be  made,  thought  proper  in  1859 
to  revoke  the  license  under  which  the  appellant  was  in  possession 
of  its  land.  This  was  followed  in  1860  by  two  suits;  one  an  action 
of  ejectment,  and  the  other  of  trespass  quare  clausum  fregit.  During 
the  pendency  of  these  suits,  which  had  been  referred  by  agreement 
to  an  arbitrator,  the  appellant  filed  a  bill  for  specific  performance, 
and  also  prajang  for  an  injunction.  The  appellee  was  successful  in 
having  the  bill  dismissed,  and  recovered  judgment  in  both  actions 
at  law.  A  subsequent  action  of  ejectment  was  brought  in  January; 


678       NORTHERN  CENTRAL  RY.  CO.  V.    CANTON  CO.  [CHAP.  IV. 

1865,  for  the  road-bed,  which  had  not  been  embraced  in  the  previous 
ejectment  suit.  A  judgment  therein  was  obtained  in  June  following, 
and  under  a  writ  of  habere  facias  possessiofiem,  possession  was  de- 
livered to  the  appellee  in  October  of  the  same  year.  The  rails  and 
other  materials,  which  formed  a  part  of  the  railway  constructed 
by  the  appellant  under  the  circumstances  above  stated,  were  upon 
the  land  at  the  time,  and  the  question  arises  who  is  the  rightful 
owner  of  them? 

The  fact  that  they  had  been  taken  up  and  severed  from  the  soil 
shortly  before  the  execution  of  the  writ  of  possession  is  immaterial. 
If  the  appellant  had  no  title  to  them  while  attached  as  a  railway  to 
the  soil,  the  severance  did  not  confer  any. 

The  general  rule  of  the  common  law  certainly  is,  that  whatever 
is  fixed  and  annexed  to  the  soil  becomes  a  part  of  it,  and  cannot  be 
removed  except  by  him  who  is  entitled  to  the  inheritance.  But  this 
rule  is  by  no  means  inflexible  and  without  exception.  Trade  fixtures 
have  been  held  by  the  earliest  cases  in  which  the  question  arose,  to 
form  an  exception.  No  matter  how  strongly  attached  to  the  soil  or 
firmly  imbedded  in  it,  they  are  treated  as  personal  property,  and 
as  such  subject  to  removal  by  the  person  erecting  them.  In  the  lead- 
ing case  of  Elwes  v.  Maw,  3  East,  38  (2  Smith's  L.  C.  251),  the 
earlier  and  more  important  decisions  upon  this  subject  are  very  fully 
reviewed  bj^  Lord  Ellenborough,  and  his  conclusion  from  them, 
that  trade  fixtures  and  buildings  for  trade  have  always  been  recog- 
nized as  an  allowed  exception  to  the  general  rule,  has  been  acquiesced 
in,  without  an  exception,  as  correctly  stating  the  law.  The  distinc- 
tion which  he  makes  against  fixtures  for  agricultural  purposes  has 
been  doubted,  and  regarded  as  too  nice  and  technical,  but  there  is 
no  case  in  which  the  exception  has  not  been  held  to  apply  to  trade 
fixtures.  In  Va7i  Ness  v.  Pacard,  2  Peters,  37,  the  exception  is  recog- 
nized by  the  Supreme  Court  of  the  United  States,  Story,  J.,  deliv- 
ering the  opinion,  and  the  doctrine  applied  to  a  house,  which  had 
been  erected  as  an  accessory  to  the  business  of  a  dairjTnan,  although 
it  was  occupied  as  the  residence  of  his  family  and  those  employed 
by  him.  It  is  also  recognized  and  asserted  in  Holmes  v.  Tremper, 
20  John.  Rep.  29;  White's  Appeal,  10  Barr.  252,  and  authorities 
there  cited. 

Another  exception  to  the  general  rule  is,  that  of  structures  upon 
the  land  of  another,  which  have  been  erected  by  the  builder  at  his 
own  cost  and  for  his  own  exclusive  use,  as  disconnected  with  the 
use  of  the  land.  If  so  erected  with  the  Imowledge  and  assent  of  the 
owner  of  the  land,  the  title  remains  in  the  builder;  and  the  property 
is  held  by  him  as  a  personal  chattel.  Thus  it  is  not  so  much  the 
character  of  the  structure  as  the  circumstances  under  which  it  was 
erected,  that  will  determine  whether  it  passes  with  the  realty,  or 
is  to  be  treated  as  personal  property.   In  the  notes  to  the  cases 


SECT.  II.]  NORTHERN  CENTRAL  RY.  CO.  V.    CANTON  CO.        679 

of  Prince  v.  Case  and  Rerick  v.  Kern,  2  Amer.  L.  C.  747,  it  is  cor- 
rectly said,  "The  American  courts  have  repeatedly  held  that  a  house 
or  other  building  will  not  be  merged  in  the  land  on  which  it  stands 
in  consequence  of  the  solidity  of  its  structure  or  the  comiection  be- 
tween it  and  its  foundations,  if  the  agreement  of  the  parties  and  the 
purposes  of  justice  require  that  the  title  to  both  should  be  kept  sep- 
arate, and  that  the  owner  of  the  house  should  have  the  right  to  enter 
for  the  purpose  of  using  it  as  his  own,  or  removing  it."  In  the  case 
of  Dame  v.  Dame,  38  N.H.  429,  this  doctrine  was  applied  to  a  house 
erected  upon  the  land  of  another,  and  it  was  held  to  be  but  a  per- 
sonal chattel.  It  is  also  established  by  Curtiss  v.  Hoyt,  19  Conn.  165; 
Wells  V.  Banister,  4  Mass.  514;  Barnes  v.  Barnes,  6  Vermont,  388; 
Pemherton  v.  Ki7ig,  2  Devereux,  376;  and  being  personalty,  it  is  gov- 
erned by  the  same  rules  as  any  other  personal  property  left  by  the 
consent  of  the  owner  of  the  land  upon  his  premises.  Smith  v.  Benson, 
1  Hill,  176. 

We  consider  the  property  in  dispute  in  this  case,  as  coming  within 
both  of  these  exceptions.  The  railway,  of  which  it  formed  an  impor- 
tant and  necessary  part,  cannot  rationally  be  supposed  to  have  been 
designed  for  any  other  purpose  than  that  of  trade  connected  with  the 
ordinary  business  and  pursuits  of  a  railway  company.  It  certainly 
was  not  accessory  to  the  enjoyment  of  the  freehold,  or  in  any  man- 
ner necessary  and  convenient  for  the  occupation  of  the  land  by  the 
party  entitled  to  the  inheritance.  Had  it  been  voluntarily  abandoned, 
it  is  not  pretended  that  it  would  or  could  have  been  used  by  the 
appellee  as  a  railway.  The  conclusion  cannot  be  avoided  that  it  was 
built  by  the  appellant  with  a  view  and  for  the  purpose  of  facilitat- 
ing and  increasing  the  business  and  trade,  in  which  the  corporators, 
under  their  corporate  powers,  had  embarked  as  carriers.  A  railway 
is  certainly  quite  as  essential  to  the  trade  and  business  of  a  railway 
company,  as  a  steam  engine  and  the  house  which  may  cover  it,  or 
any  other  fixture  can  be  to  the  miller  or  the  miner.  We  do  not  mean 
to  be  understood  as  denying  the  doctrine  laid  down  in  the  Farmers' 
Loan  and  Trust  Co.  v.  Hendrickson,  25  Barbour,  484,  and  cited  with 
approval  in  18  Md.  193,  that  the  road-bed  of  a  railway,  the  rails  fas- 
tened to  it,  and  the  buildings  at  the  depots  are  real  property.  Prima 
jade,  a  house  with  its  foundation  planted  in  the  soil  is  real  property, 
yet  when  it  is  accessory  to  trade,  and  in  law  a  trade  fixture,  we  find 
all  the  authorities  regard  it  as  personal  property.  The  same  doctrine 
is  applicable  to  the  railway  in  question.  As  a  general  rule,  it  would 
be  regarded  as  real  property,  but  under  the  circumstances  of  this 
case,  coming  as  it  does  within  the  definition  of  a  trade  fixture,  it  be- 
comes personalty,  liable  to  the  same  rules  of  law  that  govern  any 
other  personal  property. 

All  the  surrounding  circumstances  shew  that  at  the  time  this  rail- 
way was  laid  upon  the  land  of  the  appellee,  it  was  not  intended  that 


680  NORTHERN    CENTRAL    RY.    CO.    V.    CANTON    CO.     [CHAP.  IV. 

it  should  be  merged  in  the  freehold.  It  was  built  at  the  sole  cost  of 
the  appellant,  with  its  money  and  labor,  under  the  reasonable  belief 
that  it  had  a  free  right  of  way,  and  under  the  hcense  and  by  the  per- 
mission of  the  owner  of  the  soil.  It  is  true  this  license  was  not  of 
such  a  character  as  made  it  irrevocable,  or  gave  the  appellant  any 
sufficient  standing  in  a  court  of  equity,  to  obtain  a  decree  for  a  spe- 
cific performance,  yet  it  was  a  license  justifying  an  entry,  and  what- 
ever was  done  under  it,  before  its  revocation,  is  to  be  regarded  as 
legal,  and  not  as  the  act  of  a  trespasser.  The  road  thus  laid  must 
have  been  intended  by  both  parties  for  the  exclusive  use  of  the  rail- 
way company,  and  that  use  could  not  have  been  fully  enjoj^ed  with- 
out the  right  to  hold  and  control  it.  The  appellant  could  not  other- 
wise have  directed  its  management,  and  taken  up  and  replaced  such 
rails  or  other  materials  as  were  necessary  in  its  judgment  for  the 
repairs  and  proper  condition  of  the  road. 

The  strict  rule  which  has  been  applied  to  tenants,  requiring  them 
to  remove  fixtures,  which  they  hold  as  personal  property  during  the 
term,  even  if  it  were  adopted  by  this  court,  does  not  apply  to  the 
present  case.  The  ground  upon  which  a  tenant's  right  to  remove 
his  fixtures  has  been  limited  during  the  continuance  of  his  term, 
rests  upon  the  doctrine  that  if  he  neglected  to  avail  himseK  of  his 
right  within  this  period,  the  law  presumed  that  he  voluntarily  relin- 
quished his  claim  in  favor  of  the  landlord.  This  presumption  cannot 
arise  where  the  term,  being  uncertain  in  its  continuance,  may  be 
terminated  suddenly  and  without  previous  notice.  To  apply  it  to 
a  party  in  possession  under  a  license  revocable  at  pleasure,  would 
be  manifestly  unjust  and  without  reason.  It  would  be  allowing  a 
party,  without  any  fault  of  his  own,  or  any  opportunity  of  removal,  to 
be  deprived  of  his  property  at  the  mere  will  and  caprice  of  another. 

If  the  property  replevied  did  not  belong  to  the  appellee  at  the  time 
the  license  to  the  appellant  to  be  upon  its  land  was  revoked,  it  is 
not  perceived  how  the  subsequent  suits  between  them  could  have 
changed  the  title  to  it.  This  property  was  not  the  subject  of  those 
suits.  They  had  reference  to  the  land  only  upon  which  it  was,  and 
determined  no  question  of  its  ownership,  inasmuch  as  it  does  not 
pass  with  the  realty  from  the  single  circumstance  of  having  been 
affixed  to  the  soil. 

Upon  a  careful  review  of  the  law  and  facts  in  this  case,  we  cannot 
agree  with  the  court  below.  We  think  the  property  in  question 
belonged  to  the  appellant,  and  that  the  judgment  below  should  be 
reversed. 

Judgment  reversed,  and  judgme?it  for  the 

appellant  for  the  property  replevied, 
and  one  cent  damages  and  costs. 

Note.  —  In  Matter  of  City  of  New  York,  192  N.Y.  295,  the  court 


SECT.  II.]  SQUIRE    &    CO.    V.    PORTL.^ND.  681 

said  (p.  302) :  "The  familiar  limitation  upon  the  right  to  remove  such 
axtures  is  that  the  removal  must  be  accomplished  without  substan- 
tial injury  to  the  freehold  =  The  further  condition  has  not  been 
adopted  so  far  as  we  are  aware  in  the  broad  language  used  in  thifc 
proceeding,  that  the  property  must  be  susceptible  of  removal 
'without  injury  to  said  property.'  Many  additions  held  to  be 
trade  fixtures  and  removable  were  necessarily  more  or  less  injured 
in  process  of  removal." 

The  same  liberalit}'  prevails  in  favor  of  the  tenant  with  respect  to 
"  domestic  fbctures."  Raymond  v.  Strickland,  V2A  Ga.  504;  Hayford  v. 
Weniwarth,  97  iVIe.  347. 

In  Elwes  v.  Maw,  3  East  38,  the  court  held  that  a  tenant  who  had 
erected  certain  structures  for  agiicultural  purposes  could  not  remove 
them  even  during  his  term.  It  has  often  been  queried  if  such  a  dis- 
tinction should  be  taken  in  America.  See  the  remarks  of  Mr.  Justice 
Story  in  Van  Ness  v.  Pacard,  2  (Pet.)  U.S.  137,  144.  And  probably 
Elwes  V.  Maw  would  not  be  followed.  See  Harkness  v.  Sears,  26  Ala. 
493;  Vy^hiting  v.  Brastow,  4  Pick.  (Mass.)  310;  Holmes  v.  Tremper, 
20  Johns.  (N.Y.)  29;  Wing  v.  Gray,  36  Vt.  261.  But  cf.  M'Cullough  v. 
Irvine's  Executors,  13  Pa.  438. 


SQUIRE  &  CO.  V.   PORTLAND. 

106  Me.  234.     1909. 

Cornish,  J.  This  is  an  appeal  from  the  decision  of  the  assessors  of 
the  city  of  Portland  refusing  to  abate  a  tax  le\'ied  upon  the  appellant 
for  the  year  1908.  Under  the  agi-eed  statement  of  facts  two  questions 
are  involved,  first,  whether  the  appellant  can  maintain  this  appeal 
not  having  furnished  to  the  assessors  a  list  of  its  taxable  property. 
Second,  whether  the  property  in  question  was  taxable  to  the  appel- 
lant on  April  1,  1908,  as  personal  property.  .  .  . 

Was  the  property  in  question  legally  taxable  to  the  appellant  on 
April  1,  1908  ?  In  the  opinion  of  the  court  it  was  not.  This  prop- 
erty which  was  assessed  as  personal  property  is  called  a  refrigerator; 
but  from  the  description  given  it  really  consisted  of  several  cold- 
storage  rooms  forming  a  part  of  a  leased  building.  If  taxable  at  all 
to  the  appellant  it  must  be  on  the  ground  that  it  was  a  trade  fixture, 
removable  by  the  tenant  during  the  lease  and  therefore  owned  by 
it  during  that  time  as  personal  property.  From  the  agreed  state- 
ment it  appears  that  the  appellant  has  occupied  a  store  in  Portland 
since  1901  under  a  written  lease,  the  terms  or  conditions  of  which, 
however,  are  not  given;  that  a  refrigerator  or  receptacle  for  the 
storage  of  meats  and  provisions  has  been  constructed  by  the  appel- 
lant during  its  occupancy;  that  "said  refrigerator  is  constructed  of 


682 


SQUIRE    &    CO.    V.    PORTLAND. 


[chap.  IV. 


wood  and  occupies  the  whole  width  of  the  building  aforesaid  at  one 
end  from  wall  to  wall,  a  distance  of  about  twenty-three  feet  and  is 
in  length  about  thirty  feet.  It  occupies  the  basement  and  the  five 
floors  immediately  above  the  same  and  is  constructed  by  sheathinf 
the  interior  walls  of  the  building  with  wood,  and  packing  betweei. 
this  wood  and  said  interior  walls  shavings  to  the  thickness  of  some 
six  or  eight  inches.  A  double  wall  of  wood  similarly  packed  with 
shavings  constitutes  the  front  of  the  refrigerator,  extending  from 
side  wall  to  side  wall,  and  extends  from  the  basement  to  the  roof  of 
the  building,  six  stories  in  all.  The  basement  of  the  refrigerator  is 
separated  from  the  story  immediately  above,  as  is  that  story  from 
the  next  succeeding  story,  and  so  on,  up  to  and  including  the  third 
story  above  the  basement,  by  a  double  wooden  floor,  filled  with  wood 
shavings,  of  some  eighteen  inches  in  thickness,  which  floors  replace 
the  original  floors  of  the  building  which  were  torn  out  by  the  peti- 
tioner with  the  consent  of  the  lessor  in  the  construction  of  the  re- 
frigerator. It  is  admitted  that  said  refrigerator  could  be  removed 
from  the  said  premises  only  after  having  been  taken  to  pieces." 

Did  this  constitute  a  trade  fixture  or  was  it  a  part  of  the  real  es- 
tate at  the  time  of  the  assessment? 

There  is  authority  for  holding  that  even  granting  this  to  be  a  trade 
fixture,  it  became  a  part  of  the  realty  when  annexed  and  remained 
so  until  actually  severed.  Ewell  on  Fixtures,  2nd  ed.  page  122, 
states  the  doctrine  in  this  language:  "The  nature  of  this  right  of 
removal  has  been  exjDlained  in  two  ways:  by  supposing  that  the 
chattel  nature  of  the  thing  is  preserved  after  its  amiexation,  or  by 
considering  that  the  thing  ceases  to  be  a  chattel  by  being  affixed  to 
the  land,  and  becomes  real  property,  but  reducible  again  to  a  chatt© 
state  by  separation  from  the  realty.  There  is  some  confusion  an(\ 
looseness  of  expression  among  the  authorities  on  this  subject,  occa 
sioned  probably  by  the  fact  that  in  some  relations  and  for  some 
purposes,  as  in  favor,  of  execution  creditors,  or  the  executors  of  a 
tenant,  the  chattel  nature  of  the  thing  is  not  lost  by  its  annexation. 
For  many,  if  not  most  purposes,  however,  during  the  continuance  of 
the  annexation,  the  thing  is  treated  as  a  parcel  of  the  realty;  and 
though  it  is  in  the  power  of  the  party  making  the  annexation  to  re- 
duce the  thing  again  to  the  state  of  goods  and  chattels  by  severance, 
yet  until  so  severed,  it  remains  a  part  of  the  realty;  and  this  seems 
to  apply  as  well  to  trade  fixtures  as  to  other  fixtures."  See  also  Pres- 
ton V.  Briggs,  16  Vt.  124;  Bliss  v.  Whitney,  9  Allen,  114;  Stockwell 
V.  Marks,  17  Maine,  455;  Davis  v.  Buffum,  51  Maine,  160;  Saw- 
yer V.  Long,  86  Maine,  541.  Under  these  authorities,  the  assess- 
ment being  laid  while  the  annexation  continued,  it  was  invalid. 

But  the  property  in  the  case  at  bar  never  constituted  a  fixture. 
It  is  undoubtedly  true  that  the  rules  of  law  defining  fixtures  have 
grown  less  rigid  in  later  years  and  especially  is  this  true  of  trade  fix- 


SECT.  II.]  SQUIRE  &  CO.  V.    PORTLAND.  683 

tures  as  between  lessor  and  lessee.  It  is  also  true  that  as  to  such  fix- 
tures the  intention  of  the  party  making  the  annexation  is  given  spe- 
cial prominence  in  applying  the  rule  and  that  the  burden  of  showing 
the  existence  of  the  requisites  for  a  merger  is  upon  the  party  claim- 
ing such  merger.  Hayford  v.  Wentworth,  97  Maine,  347.  The  three 
requisites  specified  in  the  case  last  cited  are  physical  annexation, 
adaptability  or  usableness,  and  intention.  The  first  two  of  these  re- 
quirements are  fully  met  in  the  case  at  bar,  as  the  description  before 
given  clearly  shows.  As  to  the  third,  the  intention  of  the  lessee,  that 
must  be  proved  not  by  the  um-evealed  and  secret  intention  of  the 
party,  which  would  be  well  nigh  impossible,  but  by  the  facts  and  cir- 
cumstances including  the  relations  and  the  conduct.  It  is  more  a 
matter  of  inference  than  of  declaration.  Were  it  a  question  of  inten- 
tion as  exjDressed  subsequently,  the  attitude  of  the  appellant  in  this 
suit,  resisting  the  claim  of  a  fixture  and  insisting  upon  the  merger, 
w^ould  have  great  force,  because  it  would  be  extremely  difficult  for 
the  lessee  to  hereafter  sustain  such  a  claim  in  view  of  the  position 
taken  here.  But  the  alterations  made  in  this  building  by  the  lessee 
do  not  possess  the  elements  of  a  trade  fixture.  "  Trade  fixtures  "  is  a 
term  usually  used  to  describe  property  which  a  tenant  has  placed 
on  rented  real  estate  to  advance  the  business  for  which  the  realty  is 
leased  and  may  as  against  the  lessor  and  those  claiming  under  him, 
be  removed  at  the  end  of  the  tenant's  term.  Words  &  Phrases,  vol. 
8,  page  7042;  Ewell  on  Fixtures,  page  129.  This  definition  embraces 
a  large  variety  of  additions  and  erections,  of  which  the  books  are  full, 
as  the  temporary  partition  in  Hanson  v.  News  Pub.  Co.,  97  Maine, 
99;  a  wash  down,  sj^^Dhon  water  closet  in  Hayford  v.  Wentworth,  97 
Maine,  347;  an  ice  chest,  consisting  of  a  large  and  hea\'y'  wooden 
box  lined  with  zinc,  in  Park  v.  Baker,  7  Allen,  78;  bowling  alleys 
nailed  to  the  floor,  in  Hanrahan  v.  O^Reilly,  102  Mass.  201;  boilers, 
engines,  shafting,  etc.,  removable  without  material  injury  to  the 
building,  in  Bergh  v.  Herring-Hall-Marvin  Co.,  136  Fed.  368;  bakers 
ovens  and  boilers,  in  Baker  v.  McClurg,  198  111.  28,  64  N.E.  701 
temporary  sheathing,  partitions  and  a  cold-storage  box,  attached  b> 
strips  and  nails  to  the  wall  and  floor,  in  Ward  v.  Earl,  86  111.  App. 
635.  But  all  these  cases  differ  from  the  case  at  bar  in  two  essential 
particulars;  first,  they  involved  addition  and  not  substitution,  and 
second,  the  fixtures  could  be  removed  without  substantial  injury 
to  the  realty. 

It  is  a  well-recognized  principle  that  trade  fixtures  which  arc  in 
substitution  for  essential  parts  of  the  leased  premises  and  not  addi- 
tions thereto  are  not  removaljle,  but  are  presumed  to  be  permanent 
additions.  Cyc.  1066;  Ewell  on  Fixtures,  page  146,  note.  This  is  but 
another  way  of  stating  that  this  fact  when  proved  has  great  and  pos- 
sibly controlling  weight  upon  the  question  of  intention.  In  Felcher 
V.  McMillan,  103  Mich.  494,  61  N.W.  791,  the  tenant  removed  the 


684  SQUIRE  &  CO.  V.    PORTLAND.  [cHAP.  IV. 

pillars,  the  partitions,  sewers  and  floors  in  the  building  occupied  by 
him  replacing  them  by  others,  more  expensive  but  better  suited  to 
his  business;  held  that  the  latter  became  a  part  of  the  realty  and 
could  not  be  removed  as  trade  fixtures.  The  court  say:  "The  lessees 
chose  to  remove  the  pillars,  the  partitions,  the  sewers,  the  cement 
floor,  and  to  replace  them  by  others  which  they  considered  better 
suited  to  their  business.  If  they  chose  to  replace  wooden  pillars  with 
iron  ones,  plate-glass  fronts  and  partitions  with  refrigerators  and 
mirrors  solidly  built  in  the  partition  walls,  and  to  take  up  the  sewers 
and  floors,  and  replace  them  with  others  better  and  more  expensive, 
the  new  ones  do  not  thereby  become  trade  fixtures,  subject  to  re- 
moval by  the  tenant.  The  law  does  not  permit  tenants  to  remove 
fixtures  which  are  built  into  the  building  and  become  a  part  of  it." 
In  Bovet  v.  Holzgraft,  5  Texas,  Civ.  App.  141,  23  S.W.  1014,  a  new 
stairway  was  substituted  for  an  old  one.  Held  that  the  former 
became  a  part  of  the  realty  and  irremovable  by  the  tenant.  See  also 
ishby  V.  Ashhy,  59  N.J.  Eq.  536,  46  Atl.  528. 

The  tenant  in  the  case  at  bar  tore  out  the  original  floors  in  the 
rear  thirty  feet  of  the  building  and  replaced  them  with  double 
wooden  floors  eighteen  inches  thick  filled  with  wood  shavings. 
When  completed  the  new  floor  simply  took  the  place  of  the  old  and 
became  a  part  of  the  building.  They  could  no  more  be  removed  by 
the  tenant  than  the  original. 

Another  principle  equally  well  settled  is  that  the  right  of  removal 
can  only  be  exercised  when  it  causes  no  material  injury  to  the  es- 
tate. The  value  of  this  principle  also  is  its  bearing  upon  the  question 
of  intention.  But  it  is  a  rule  universally  recognized  and  nowhere 
more  carefully  than  in  the  cases  first  cited  where  the  right  of  removal 
was  granted,  it  being  proved  that  no  substantial  injury  would  ensue. 
In  Collamore  v.  Gillis,  149  Mass.  578,  a  baker's  oven,  built  of  bricks 
and  mortar,  and  so  united  with  the  building  that  the  two  were  in- 
separable without  the  destruction  of  the  oven  and  a  substantial 
injury  to  the  building,  was  held  not  to  be  a  removable  trade  fixture. 

"  Where  the  chattel  is  so  annexed  that  it  cannot  be  removed  with- 
out material  injury  to  the  realty  it  would  ordinarily  be  a  necessary 
inference  that  the  intention  was  not  to  remove  it,"  says  this  court  in 
Hayford  v.  Wentworth,  97  Maine,  at  page  350,  supra.  That  necessary 
inference  must  be  drawn  here.  The  appellant  did  not  place  any  fix- 
ture in  the  building  that  it  intended  to  remove.  A  part  of  the  struc- 
ture itself  was  changed  and  remodelled.  It  was  for  the  most  part  a 
case  not  of  construction  but  of  reconstruction,  not  of  addition  but 
of  substitution.  Floors  were  removed  and  thicker  floors  were  sub- 
stituted. The  walls  were  doubled  with  a  thickness  of  six  inches  of 
shavings  between,  and  a  similar  double  wall  was  constructed  to  sepa- 
rate these  several  rooms  from  the  rest  of  the  building.  To  remove 
\11  this  would  be  to  leave  the  building  with  thirty  feet  in  the  rear 


SECT.  II.]  PHELPS    V.    AYERS.  685 

without  floors  and  open  from  basement  to  roof,  /.nd  after  removing 
what  was  put  in,  the  tenant  would  have  not  a  structure  or  machine 
the  parts  of  which  could  fit  into  one  another  and  be  reassembled  and 
setup  in  some  other  place,  but  a  worthless  mass  of  old  lumber,  hard- 
ware and  sha\angs.  The  burden  of  proof  as  to  merger  is  fully  sus- 
tained here,  by  the  character  of  the  changes  made,  by  the  fact  of 
substitution,  by  the  material  injury  to  the  building  consequent  upon 
removal,  and  by  the  valueless  condition  of  the  so-called  fbcture  when 
removed.  The  inference  is  irresistible  that  the  propertj^  became  a 
part  of  the  building  itself  and  that  the  appellant  is  correct  in  its  con- 
tention that  it  had  no  ownership  therein. 

Appeal  sustained  with  costs  and  case  remanded  to  the  court  at 
nisi  prius  for  the  determination  of  the  question  of  over-valuation  in 
accordance  with  the  stipulation  of  the  parties. 

So  ordered. 


PHELPS  V.  AYERS. 

142  AVis.  442.     1910. 

SiEBECKER,  J.  The  court's  findings  of  facts,  supplemented  by  the 
undisputed  evidence,  show  that  the  plaintiffs  and  the  lessee  of  the 
defendant  occupied  the  defendant's  premises  under  a  lease  to  con- 
duct the  business  of  storing  and  selling  ice  which  was  harvested  from 
the  millpond  on  the  premises  during  the  term  of  the  lease,  and  for 
this  purpose  constructed  the  icehouse  in  question.  It  appears  that 
the  plaintiffs  and  the  lessee,  McGovern,  arranged  to  engage  in  this 
enterprise  before  the  execution  of  the  lease;  that  the  plaintiffs,  pur- 
suant thereto,  undertook  to  furnish  the  lumber  needed  for  erecting 
the  icehouse  and  to  defray  the  cost  of  its  construction;  and  that  it 
was  understood  between  them  that  the  title  to  the  lumber  was  to 
remain  in  these  plaintiffs.  The  facts  and  the  accompanying  circum- 
stances of  the  transactions  between  the  lessee,  McGovern,  and  the 
defendant,  as  owner  of  the  premises,  warrant  the  implication  that  it 
was  understood  at  the  time  of  the  making  of  the  lease  that  these 
parties  intended  that  the  icehouse  and  the  lumber  therein  might  be 
removed  from  the  premises  by  the  lessee  and  the  plaintiffs.  No  time 
was,  however,  specified  in  the  agreement  of  the  parties  within  which 
such  removal  was  to  be  made.  Under  these  circumstances  the  law 
limits  the  time  for  the  exercise  of  this  right  to  the  period  covered  by 
the  lease  or  the  period  after  its  expiration  during  which  the  lessee 
remains  in  possession  of  the  premises,  if  the  structure  is  of  a  nature 
which  makes  it  an*  accession  to  the  real  estate  and  thus  a  fixture.  See 
the  following  cases:  Keogh  v.  Daniell,  12  Wis.  163;  Fitzgerald  v. 
Anderson,  81  Wis.  341,  51  N.W.  554.  There  is  no  uncertainty  in  the 


686  PHELPS    V.   AYERS.  [CHAP.  IV. 

law  that  if  a  lessee  surrenders  possession  of  the  premises  before 
removal  of  a  fixture,  without  an  express  reservation  of  the  right  of 
removal,  he  loses  all  right  to  remove  it.  Josslyn  v.  McCabe,  46  Wis. 
591,  1  N.W.  174;  Hart  v.  Hart,  117  Wis.  639,  94  N.W.  890;  Second 
Nat.  Bank  v.  0.  E.  Merrill  Co.,  69  Wis.  501,  34  N.W.  514. 

The  appellants  aver,  however,  that  their  right  and  title  to  the 
lumber  in  the  icehouse  is  founded  on  the  fact  that  the  structure  and 
the  material  composing  it  never  became  an  accession  to  the  real 
estate  on  which  it  was  erected  and  that  it  is  now  personal  property, 
and  hence  that  the  title  thereto  did  not  pass  to  the  defendant,  as 
owner  of  the  real  estate,  at  the  expiration  of  the  McGovern  lease. 
This  claim  raises  the  inquiry  whether  or  not  the  lumber  in  the  ice- 
house has  changed  its  status  from  that  of  personalty  to  realty.  This 
status  is  determined  by  the  accompanying  facts.  The  evidence  does 
not  show  that  the  parties  to  the  lease  mutually  intended  that  this 
material  should  remain  personalty.  Hence  we  have  a  mental  attitude 
of  one  party  opposed  to  that  of  the  other  respecting  this  question, 
and  we  must  therefore  resort  to  the  external  and  visible  facts  and 
accompanying  circumstances  to  determine  the  controversy.  This 
involves  the  inquiry  as  to  whether  or  not  the  structure  was  actually 
annexed  and  appurtenant  to  the  land,  the  inquiry  as  to  whether  or 
not  it  was  appropriate  to  the  use  of  the  realty  on  which  it  was  placed, 
and  an  inquiry  into  the  structure  of  the  building,  its  mode  of  annexa- 
tion, and  the  relation  and  situation  of  the  parties  to  the  transaction. 
The  evidence  shows  that  the  building  was  located  and  attached  to  the 
ground  as  icehouses  usually  are  built,  which  is  by  resting  the  super- 
structure on  wooden  sills  or  planks,  b}^  erecting  thereon  the  frame- 
work, and  inclosing  it  with  boards  on  the  sides  and  a  shingled  roof. 
All  of  the  parts  were  properly  united  to  make  a  substantial  and 
completed  structure  for  storing  ice.  As  thus  constructed  it  was 
appropriate  for  storing  ice  on  the  premises  on  which  it  was  located, 
which  appear  to  have  been  conveniently  located  as  to  proximity  and 
accessibility  to  the  millpond  from  which  the  ice  was  harvested.  All  of 
these  are  persuasive  facts  to  show  that  the  icehouse  was  in  its  nature 
and  purpose  adapted  to  the  use  of  the  real  estate  to  which  it  was 
attached,  and  in  their  probative  force  clearly  rebut  any  contrary  in- 
ferences arising  from  the  situation  and  relation  of  the  parties.  While 
it  may  be  inferred  from  the  situation  that  this  enterprise  was  of  a 
temporary  nature  and  was  to  continue  only  for  the  one  season  cov- 
ered by  the  written  lease,  this  is  not  jiecessarily  incompatible  with 
the  idea  that  this  structure  has  characteristics  of  permanenc}^  and, 
under  the  accompanying  circumstances,  became  an  accession  to  the 
realty.  We  are  persuaded  that  the  structure  is  a  permanent  accession 
to  the  realty  and  that  the  lumber  composing  it  did  not  retain  its 
former  status  of  personalty. 

It  is  urged  that  this  conclusion  operates  to  transfer  to  the  defend- 


SECT.  II.]  EX  PARTE  BROOK.  687 

ant  a  large  amount  of  property  without  any  consideration.  Such  is 
not  the  legal  implication  of  the  case.  Since  the  plaintiffs  did  not 
remove  the  structure  while  in  possession  of  the  premises  under  the 
lease,  and  did  not  by  agreement  with  the  defendant  reserve  a  right 
to  remove  it  thereafter,  the  law  implies  that  in  consideration  of  secur- 
ing the  lease  of  the  premises  and  its  use  and  occupation  they  were 
compensated  for  the  expense  of  its  erection,  and  that  these  consider- 
ations operated  to  compensate  them  for  the  cost  of  adding  this  fix- 
ture to  the  defendant's  land.  From  any  viewpoint  of  the  conduct  of 
the  parties,  the  consequences  of  the  situation  which  vests  the  right  to 
this  structure  in  the  defendant  are  attributable  to  the  voluntary  acts 
of  the  plaintiffs  in  omitting  to  seasonably  remove  the  building  during 
the  lessee's  tenancy  and  in  their  failure  to  reserve  the  right  to  re- 
move it  thereafter.  Under  these  circumstances  the  law  is  unable  to 
afford  them  relief  if  they  sustained  pecuniary  losses  through  such 
omissions. 

By  the  Court.  —  Judgment  affirmed. 


Ex  parte  BROOK. 

L.  R.  10  Ch.  D.  100.     1878. 

A  TRUSTEE  in  bankruptcy  of  a  lessee  sold  and  severed  trade  fixtures 
upon  the  leased  premises,  and  thereafter  disclaimed  the  lease.  By 
statute,  such  disclaimer  had  the  effect  of  a  surrender  of  the  lease  on 
the  date  of  the  trustee's  appointment.  The  landlord  sought  to  re- 
cover the  proceeds  of  the  sale  from  the  trustee. 

Thesiger,  L.J.  The  general  presumption  of  law  with  reference  to 
tenants'  fixtures  rem-aining  affixed  to  the  freehold  when  a  term  comes 
to  an  end  is,  that  "they  become  a  gift  in  law  to  him  in  reversion," 
and  are,  therefore,  not  removable  (per  Lord  Holt  in  Poole's  Case, 
1  Salk.  368).  That  general  presumption  has,  however,  been  made 
subject  to  a  qualification  which  is  expressed  in  the  proposition  laid 
down  by  the  Court  of  Exchequer  in  Weeton  v.  'Woodcock,  7  M.  &  W. 
14,  19,  in  these  terms  —  viz.,  "that  the  tenant's  right  to  remove  fix- 
tures continues  during  his  original  teiTn,  and  during  such  further 
period  of  possession  by  him  as  he  holds  the  premises  under  a  right 
still  to  consider  himself  as  tenant,"  or,  in  the  language  of  Baron 
Parke  in  Mackintosh  v.  Trotter,  3  M.  &  W.  184,  "that  the  tenant  has 
the  right  to  remove  fixtures  of  this  nature  during  his  term,  or  during 
what  m.ay  for  this  purpose  be  considered  as  an  excrescence  on  the 
term."  JMuch  reliance  has  been  ]:)laced  in  argument  on  the  part  of  the 
respondent  upon  this  qualification  of  the  general  presumption  of 
law,  and  it  has  been  urged  upon  us  that  in  this  case  the  period  l)e- 
tween  the  appointment  of  the  trustee  and  the  disclaimer  was  such  an 


688  EX    PAETE    BROOK.  [CHAP.  IV. 

"excrescence"  on  the  term,  and  that  the  respondent  had  during 
that  period  a  right  to  consider  himself  as  tenant.  We  cannot  accede 
to  that  argument.  It  is  not  easy  to  define  precisely  what  was  meant 
by  the  propositions  to  which  we  have  just  referred,  and  we  observe, 
that  as  regards  the  rule  laid  down  in  Weeton  v.  Woodcock,  the  diffi- 
culty which  we  feel  in  understanding  its  exact  meaning  was  shared 
in  by  the  Court  of  Common  Pleas,  as  stated  by  Mr.  Justice  Willes 
in  delivering  the  judgment  of  that  court  in  Leader  v.  Homewood, 
5  C.  B.  (N.S.)  546,  553.  It  may  be  that  in  cases  where  a  tenant  holds 
over  after  the  expiration  of  a  term  certain  under  a  reasonable  sup- 
position of  consent  on  the  part  of  his  landlord,  or  in  the  case  where  an 
interest  of  uncertain  duration  comes  suddenly  to  an  end,  and  the 
tenant  keeps  possession  for  such  reasonable  time  only  as  would  en- 
able him  to  sever  his  fixtures  and  to  remove  them  with  his  goods  and 
chattels  off  the  demised  premises,  or  even  in  cases  where  the  landlord 
exercises  a  right  of  forfeiture,  and  the  tenant  remains  on  the  premises  • 
for  such  reasonable  time  as  last  referred  to,  the  law  would  presume  a 
right  to  remove  tenant's  fixtures  after  the  expiration  or  determina- 
tion of  the  tenancy.  But,  however  that  may  be,  we  are  clearly  of 
opinion  that  the  case  of  a  surrender  of  a  lease  by  a  tenant,  while  ten- 
ant's fixtures  remain  affixed  to  the  freehold,  does  not,  either  upon 
principle  or  the  authority  of  decided  cases,  give  any  right  to  the  ten- 
ant subsequently  to  remove  such  fixtures.  At  the  date  of  the  surren- 
der they  form  part  of  the  freehold,  and  the  law  has  no  right  to  limit 
the  effect  of  the  surrender  by  excluding  from  it  that  which  legally 
passes  by  it,  and  which  has  not  been  excluded  from  it  by  the  bargain 
of  the  parties. 

Order  of  the  County  Court  Judge  [for  the  landlord]  restored. 

Note.  —  In  Lewis  v.  Ocean  Navigation  Co.,  125  N.Y.  341,  a  tenant 
who  held  over  beyond  his  term  was  held  to  be  entitled  to  remove  fix- 
tures placed  by  him  on  the  land,  after  the  expiration  of  his  term. 
Peckiiam,  J.,  said  (p.  351),  that  the  fixtures  must  be  removed 
"during  the  time  of  possession,  but  not  in  all  cases  during  the  run- 
ning of  the  term."   Cf.  Cromie  v.  Hoover,  40  Ind.  49. 

A  tenant  at  will  has  a  reasonable  time  after  the  tenancy  is  deter- 
mined to  remove  fixtures.  Ellis  v.  Paige,  1  Pick.  (Mass.)  43.  But 
not  if  he  has  received  such  notice  to  quit  as  was  required  by  statute, 
and  has  failed  to  remove  the  fixtures  before  the  date  when  he  should 
have  quitted  the  premises.  Erickson  v.  Jones,  37  Minn.  459. 

A  tenant  of  a  mortgagor  does  not  lose  his  right  to  sever  fixtures 
through  a  foreclosure  of  the  mortgage.  Sanders  y."  Davis,  L.R.  15 
Q.B.D.  218. 

In  Morey  v.  Hoijt,  62  Conn.  542,  the  court  said  (p.  546) :  "Another 
general  rule  quite  well  estabUshed  is  this :  Where  the  term  is  surren- 
dered, or  is  put  an  end  to  by  the  lessor  under  a  forfeiture  clause  for 


SECT.  II.]  WATRISS    V.    FIRST    NATIONAL    BANK.  689 

some  act  or  omission  of  the  tenant,  and  he  is  put  out  of  and  the  lessor 
is  put  into  possession,  the  right  of  the  tenant  to  remove  his  fixtures, 
in  the  absence  of  special  agreement  or  special  circumstances  affecting 
his  right  to  remove,  is  gone  as  effectually  as  if  the  term  had  expired 
by  lapse  of  time."  Cf.  Gasaway  v.  Thomas,  56  Wash.  77;  Gartland  v. 
Hickman,  56  W.  Va.  75. 

In  Lawton  v.  Lawton,  3  Atk.  13,  the  court  held  that  a  fire  engine 
set  up  for  the  benefit  of  a  colliery  by  a  tenant  for  life  was  part  of  the 
assets  of  his  executor.  But  cf.  White  v.  ArncU,  1  Wh.  (Pa.)  91. 

In  Thropp^s  Appeal,  70  Pa.  395,  a  creditor  of  the  tenant  levied 
execution  on  fixtures  erected  by  the  tenant.  Thereafter  the  tenant, 
for  a  consideration,  surrendered  the  term  to  the  landlord  who  had  no 
knowledge  of  the  levy.  It  was  held  that  the  purchaser  at  the  execu- 
tion sale  could  not  remove  the  fixtures.  In  London  Discount  Co.  v. 
Drake,  6  C.  B.  N.S.  798,  the  tenant  mortgaged  his  fixtures  and  then 
made  a  gratuitous  surrender  of  the  term  to  the  landlord.  It  was  held 
that  the  mortgagee  had  a  right  to  enter  and  sever  the  fixtures. 


WATRISS  V.   FIRST  NATIONAL  BANK. 

124  Mass.  571.     1878. 

Contract  for  breach  of  a  covenant  contained  in  a  written  lease 
given  by  the  plaintiff  to  the  defendant,  by  which  the  lessee  agi-eed 
"to  quit  and  deliver  up  the  premises  to  the  lessor  or  her  attorney 
peaceably  and  quietly  at  the  end  of  the  term,  in  as  good  order  and 
condition  ...  as  the  same  now  are."  The  breach  complained  of  was 
the  taking  down  and  removal  of  a  fire-proof  safe  and  vault,  a  furnace 
with  pipes  and  flues,  and  certain  counters.  The  answer  contained  a 
general  denial,  and  alleged  that  the  defendant  owned  the  property 
removed.  Trial  in  this  court,  before  Ames,  J.,  who  reported  the  case 
for  the  consideration  of  the  full  court,  in  substance  as  follows: 

The  plaintiff  and  one  Hyde  owned  the  premises  as  tenants  in  com- 
mon, and  by  a  lease  dated  January  1,  1861,  demised  them  to  the 
Harvard  Bank  for  the  term  of  ten  years,  at  the  rent  of  $300  a  year. 
The  lease  contained  a  clause  giving  to  the  lessee  the  privilege,  at  its 
option,  of  renewing  and  extending  its  enjoyment  of  the  premises  for 
the  additional  term  of  five  years  upon  the  same  terms;  and  the  lessee 
agreed  "to  quit  and  deliver  up  the  premises  to  the  lessors  or  their 
attorney,  peaceably  and  quietly,  at  the  end  of  the  term,  in  as  good 
order  and  condition,  reasonable  use  and  wearing  thereof,  fire  and 
other  unavoidable  casualties  excepted,  as  the  same  now  are  or  may 
be  put  into  by  the  said  lessors,"  "and  not  make  or  suffer  anj^  waste 
thereof;"  "nor  make  or  suffer  to  be  made  any  alteration  therein,  but 
with  the  approbation  of  the  lessors  thereto  in  writing  having  been 


090  WATRISS    V.    FIRST    NATIONAL    BANK.  [cHAP.  IV. 

first  obtained;  "  and  giving  the  lessors  the  right  to  enter  to  view  and 
make  improvements,  and  expel  the  lessee  if  it  should  fail  to  pay  the 
rent  as  aforesaid,  or  to  make  or  suffer  any  strip  or  waste  thereof. 

The  lessee  thereupon  constructed  in  the  building  a  fire-proof  safe 
or  vault,  for  the  safe  keeping  of  money,  books  and  securities,  also  a 
portable  furnace  in  the  basement,  with  the  necessary  pipes,  flues  and 
registers  for  warming  its  rooms,  and  certain  counters.  The  premises 
were  occupied  by  the  lessee  as  its  banking  rooms. 

On  May  16,  1864,  the  lessee  was  organized  as  a  national  bank 
under  the  laws  of  the  United  States,  and  its  name  w^as  changed  to 
the  First  National  Bank  of  Cambridge,  but  there  was  no  other  change 
of  its  identity.  In  the  course  of  the  first  term,  a  partition  was  duly 
had  between  Hyde  and  the  plaintiff,  by  virtue  of  which  the  plaintiff 
became  the  sole  owner  of  the  premises.  Before  the  expiration  of  the 
term,  the  defendant  elected  to  continue  to  hold  under  the  lease  for 
the  five  additional  years,  and  a  new  lease  was  executed  between 
the  parties  to  this  action,  bearing  date  October  7,  1870,  gi-anting 
to  the  defendant  a  further  term  of  five  years  from  January  1,  1871, 
at  the  rent  of  S800  a  j^ear.  This  lease  contained  -the  same  clauses 
above  quoted  from  the  lease  of  January  1,  1861,  and  the  following 
additional  clause:  "And  provided  also,  that  in  case  the  premises, 
or  any  part  thereof,  during  said  term,  be  destroyed  or  damaged  by 
fire  or  other  unavoidable  casualty,  so  that  the  same  shall  be  thereby 
rendered  unfit  for  use  and  habitation,  then,  and  in  such  case,  the 
rent  hereinbefore  reserved,  or  a  just  and  proportional  part  thereof, 
according  to  the  nature  and  extent  of  the  injuries  sustained,  shall  be 
suspended  or  abated  until  the  said  premises  shall  have  been  put  in 
proper  condition  for  use  and  habitation  by  the  said  lessor,  or  these 
presents  shall  thereby  be. determined  and  ended,  at  the  election  of 
the  said  lessor  or  her  legal  representatives." 

On  or  about  November  5,  1875,  the  defendant,  having  concluded 
to  remove  its  business  to  another  building,  proceeded  to  take  down 
the  vault,  and  remove  the  materials  of  which  it  was  composed,  and 
also  the  furnace,  pipes,  flues,  registers  and  counters  to  its  nev/  bank- 
ing rooms,  contending  that  it  had  a  right  so  to  do. 

It  was  agreed  that  the  damage  done  by  this  proceeding  to  the 
building,  if  the  property  so  removed  could  lawfully  be  considered 
as  fixtures  which  the  defendant,  as  an  outgoing  tenant,  had  a  right 
to  remove,  was  $75;  that  the  plaintiff  was  entitled,  at  all  events,  to 
recover  that  sum,  with  interest,  and  that  the  building  could  for  that 
sum  be  restored  to  the  same  good  order  and  condition  as  it  was  in 
at  the  date  of  the  first  lease.  The  jury  returned  a  verdict  for  the 
plaintiff  for  $75,  and  the  judge  reported  the  case  for  the  considera- 
tion of  the  full  court.  If  the  plaintiff  was  entitled  to  recover  a  greater 
sum  than  the  amount  of  the  verdict,  and  if  the  alleged  fixtures 
were  removed  wrongfully  and  in  violation  of  her  rights,  the  case  was 


SECT.  II.]  WATRISS    V.    FIRST    NATIONAL    BANK.  691 

to  stand  for  trial;  otherwise,  judgment  was  to  be  entered  on  the 
jerdict. 

Endicott,  J.  It  is  stated  in  the  report  that  the  Harvard  Bank, 
soon  after  taking  possession  of  the  premises  under  the  lease  of  Janu- 
ary 1,  1861,  put  in  a  counter,  a  portable  furnace  with  its  necessary 
connections,  and  a  fire-proof  safe  or  vault,  for  the  removal  of  which, 
in  1875,  this  action  is  brought.  In  1864,  the  Harvard  Bank  was 
organized  as  the  First  National  Bank  of  Cambridge.  No  question 
is  made  that  all  the  proceedings  were  according  to  law.  The  right 
to  the  personal  property  of  the  old  bank  passed  therefore  to  the  de- 
fendant upon  the  execution  of  the  necessary  papers  and  the  approval 
of  the  proper  officers;  no  other  assignment  was  necessary.  Atlantic 
National  Bank  v.  Harris,  118  Mass.  147,  151. 

The  right  of  the  defendant  to  occupy  the  premises  under  the  lease 
to  the  Harvard  Bank  for  five  years,  and  to  exercise  the  option  con- 
tained in  the  lease  to  hold  the  premises  for  five  years  more  at  the 
same  rent,  seems  to  have  been  conceded  by  the  lessors;  for  the  de- 
fendant continued  in  possession,  pajdng  rent  during  the  whole  term 
of  ten  years  contemplated  by  the  lease,  which  expired  January  1, 
1871.  We  must  assume  that  the  title,  not  merely  to  movable  chat- 
tels upon  the  premises,  but  also  to  trade  fixtures  put  in  by  the  Har- 
vard Bank,  passed  to  the  defendant,  as  the  plaintiff  does  not  deny 
that  the  defendant  could  have  removed  such  of  the  articles  as  are 
trade  fixtures  at  any  time  before  the  final  expiration  of  the  lease  on 
January  1,  1871. 

In  October,  1870,  about  three  months  before  the  final  expiration 
of  the  term  of  the  old  lease,  the  plaintiff,  one  of  the  original  lessors, 
who  had  in  the  mean  time  acquired  the  whole  title  to  the  premises, 
executed  a  new  lease  to  the  defendant,  then  in  occupation,  for  a 
much  higher  rent,  containing  different  stipulations  from  those  in 
the  old  lease,  particularly  in  regard  to  abatement  of  rent  in  case  of 
fire.  This  lease  was  to  take  effect  January  1,  1871,  but  made  no 
reference  to  the  existing  lease  or  to  the  removal  of  any  trade  fixtures 
then  upon  the  premises.  It  was  in  no  proper  sense  a  renewal  of  the 
old  lease.  It  contained  the  usual  covenants  on  the  part  of  the  lessee 
to  quit  and  deliver  up  the  premises  at  the  end  of  the  term  in  as  good 
order  and  condition  "as  the  same  now  are."  Although  executed 
before  the  expiration  of  the  earlier  lease,  it  can  have  no  other  or 
different  effect  than  if  given  on  the  day  it  was  to  become  operative, 
and  its  stipulations  and  conditions  are  to  be  considered  as  if  made 
on  that  day.  And  the  question  arises  whether  the  acceptance  of 
the  new  lease  and  occupation  under  it  on  January  1,  1871,  was  equiv- 
alent to  a  surrender  of  the  premises  to  the  lessor  at  the  expiration 
of  the  first  term.  If  it  did  amount  to  a  surrender,  it  is  very  clear  that 
the  defendant  could  not  afterwards  recover  the  articles  alleged  to 
e  trade  fixtures. 


692  WATRISS    V.    FIRST    NATIONAL    BANK.  [cHAP.  TV. 

The  general  rule  is  well  settled  that  trade  fixtures  become  annexed 
to  the  real  estate;  but  the  tenant  may  remove  them  during  his  term, 
and,  if  he  fails  to  do  so,  he  cannot  afterwards  claim  them  againsi 
the  owner  of  the  land.  Poole's  Case,  1  Salk.  368;  Gaffield  v.  Hapgood 
17  Pick.  192;  Winslmv  v.  Merchants  Ins.  Co.,  4  Met.  306,  311;  Shep- 
ard  V.  Spaidding,  4  Met.  416;  Bliss  v.  Whitney,  9  Allen,  114,  115, 
and  cases  cited;  Talbot  v.  Whipple,  14  Allen,  177;  Lyde  v.  Russell, 
1  B.  &  Ad.  394.  Baron  Parke,  in  Minshall  v.  Lloyd,  2  M.  &  W.  450. 
This  rule  always  applies  when  the  term  is  of  certain  duration,  as 
under  a  lease  for  a  term  of  years,  which  contains  no  special  pro^^- 
sions  in  regard  to  fixtures.  But  where  the  term  is  uncertain,  or  de- 
pends upon  a  contingency,  as  where  a  party  is  in  as  tenant  for  life, 
or  at  will,  fixtures  may  be  removed  ^\athin  a  reasonable  time  after 
the  tenancy  is  determined.  Ellis  v.  Paige,  1  Pick.  43,  49;  Doty  v. 
Gorham,  5  Pick.  487,  490;  Martin  v.  Roe,  7  E.  &  B.  237.  See  also 
Whiting  v.  Brastow,  4  Pick.  310,  311,  and  note. 

There  is  another  class  of  cases  which  forms  an  exception  to  the 
general  rule.  Where  a  lease  was  given  by  an  agent  without  sufficient 
authority  during  the  absence  of  the  owmer,  and  was  terminated  by 
the  owner  on  his  return  from  abroad,  it  was  decided  by  this  com't 
that  the  lessees  became  tenants  at  sufferance,  and  could  remove 
their  fixtures  within  a  reasonable  time  after  such  termination.  An- 
toni  V.  Belknap,  102  Mass.  193.  In  Penton  v.  Robart,  2  East,  88,  it 
was  held  that  a  tenant,  who  had  remained  in  possession  after  the 
expiration  of  the  term,  had  the  right  to  take  away  his  fixtures,  and 
Lord  IvENYONsaid,  "He  was  in  fact  still  in  possession  of  the  premises 
at  the  time  the  things  were  taken  away,  and  therefore  there  is  no 
pretence  to  say  that  he  had  abandoned  his  right  to  them."  In  Wee- 
ton  V.  Woodcock,  7  M.  &  W.  14,  a  term  under  a  lease  had  been  for- 
feited by  the  bankruptcy  of  the  lessee,  and  the  lessor  entered  upon 
the  assignees  to  enforce  the  forfeiture,  and  it  was  held  that  they 
might  have  a  reasonable  time  to  remove  fixtures;  and  Baron  Alder- 
son  said  that  "the  tenant's  right  to  remove  fixtures  continues  during 
his  original  term,  and  during  such  further  period  of  possession  by 
him,  as  he  holds  the  premises  under  a  right  still  to  consider  himselj 
as  tenant."  Mr.  Justice  Willes,  commenting  on  these  two  last  cases, 
in  Leader  v.  Homewood,  5  C.  B.  (N.S.)  546,  said:  "It  is  perhaps  not 
easy  to  understand  fully  what  is  the  exact  meaning  of  this  rule,  and 
whether  or  not  it  justifies  a  tenant  who  has  remained  in  possession 
after  the  end  of  his  term,  and  so  become  a  tenant  at  sufferance,  in 
severing  the  fixtures  during  the  time  he  continues  in  possession  as 
such  tenant.  But  the  rule,  whatever  its  exact  meaning  may  be,  is 
plainly  inconsistent  with  the  argument  relied  on  by  the  counsel  for 
the  plaintiff  in  the  present  aase,  y\z.,  that  the  right  of  the  tenant 
continues  till  he  has  evinced  an  intention  to  abandon  his  right  to  the 
fixtures."   In  Mackintosh  v.  Trotter,  3  M.  &.  W.  184,  Baron  Parke,, 


SECT.  II.]  WATRISS    V.    FIRST    NATIONAL    BANK.  ■  693 

after  stating  that  whatever  is  planted  in  the  soil  belongs  to  the  soil, 
remarked  "that  the  tenant  has  the  right  to  remove  fixtures  of  this 
nature  during  his  term,  or  during  what  may,  for  this  purpose,  be 
considered  as  an  excrescence  on  the  term."  He  also  refers  to  Min- 
shall  V.  Lloyd,  2  M.  &  W.  450,  as  authority,  wherein  he  stated  in  the 
most  emphatic  manner  that  "the  right  of  a  tenant  is  only  to  remove 
during  his  term  the  fixtures  he  maj'  have  put  up,  and  so  to  make 
them  cease  to  be  any  longer  fixtures."  It  is  clear  from  these  cases 
that  the  right  of  a  tenant,  in  possession  after  the  end  of  his  term, 
to  remove  fixtures  within  a  reasonable  time,  does  not  rest  merely 
on  the  fact  that  he  is  in  occupation,  or  has  not  evinced  an  inten- 
tion to  abandon,  but  because  he  is  still,  in  contemplation  of  law,  in 
occupation  as  tenant  under  the  original  lease,  and,  as  Baron  Parke 
says,  under  what  may  be  considered  an  excrescence  on  the  term, 
that  is,  as  tenant  at  sufferance. 

But  a  very  different  question  is  presented  when  the  same  tenant 
continues  in  possession  under  a  new  lease  containing  different  terms 
and  conditions,  making  no  reference  to  the  old  lease,  reserving  no 
rights  to  the  lessee  in  fixtures  amiexed  during  the  previous  term  and 
not  removed  before  its  expiration,  and  containing  the  covenant  to 
deliver  up  the  premises  at  the  end  of  the  term  in  the  same  condition. 
This  is  not  the  extension  of  or  holding  over  under  an  existing  lease; 
it  is  the  creation  of  a  new  tenancy.  And  it  follows  that  whatever 
was  a  part  of  the  freehold  when  the  lessee  accepted  and  began  his 
occupation  under  the  new  lease  must  be  delivered  up  at  the  end  of 
the  term,  and  cannot  be  severed  on  the  ground  that  it  was  put  in, 
as  a  trade  fixture,  under  a  previous  lease  which  has  expired.  The 
failure  of  the  lessee  to  exercise  his  right  to  remove  during  the  former 
term,  or  to  reserve  it  in  his  new  contract,  precludes  him  from  deny- 
ing the  title  of  his  landlord  to  the  estate  and  the  fixtures  annexed 
which  have  become  part  of  it.  The  occupation  under  the  new  lease 
is  in  effect  a  surrender  of  the  premises  to  the  landlord  under  the  old. 

This  view  is  supported  by  the  authorities.  The  earliest  case  on  the 
subject  is  Fitzherbert  v.  Shaw,  1  H.  Bl.  258.  A  purchaser  of  lands 
having  brought  ejectment  against  a  tenant  from  year  to  year,  the 
parties  entered  into  an  agreement  that  judgment  should  be  signed 
for  the  plaintiff,  with  a  stay  of  execution  for  a  given  period;  and  it 
was  held  that  the  tenant  could  not,  during  the  interval,  remove  the 
fixtures  erected  during  the  term  and  before  action  brought  —  on 
the  ground  that  the  tenant  could  do  no  act  to  alter  the  premises  in 
the  mean  time,  but  they  must  be  delivered  up  in  the  same  situation 
they  were  in  when  the  agreement  was  made  and  the  judgment  signed. 
This  case  was  followed  in  Heap  v.  Barton,  12  C.  B.  274,  where  there 
was  a  similar  agreement,  and  Jervis,  C.J.,  said  that,  "if  the  tenants 
meant  to  avail  themselves  of  their  continuance  in  possession  to  re- 
move the  fixtures,  they  should  have  said  so."    In  Thresher  v.  East 


694  WATRISS    V.    FIRST    NATIONAL    BANK.  [CHAP.  TV. 

London  Waterworks,  2  B.  &  C.  608,  it  was  held  that  a  lessee,  who  had 
erected  fixtures  for  purposes  of  trade  on  the  premises,  and  afterward 
took  a  new  lease  to  commence  at  the  expiration  of  the  former  one, 
which  contained  a  covenant  to  repair,  would  be  bound  to  repair  the 
fixtures,  unless  strong  circumstances  were  shown  that  they  were  not 
intended  to  pass  under  the  general  words  of  the  second  demise;  and 
a  doubt  was  expressed  whether  any  circumstances,  dehors  the  deed, 
can  be  alleged  to  show  they  were  not  intended  to  pass.  The  case  of 
Shepard  v.  Spauldiiig,  4  Met.  416,  touches  the  question.  A  lessee 
erected  a  building  on  the  demised  premises,  which  he  had  a  right  to 
remove,  but  surrendered  his  interest  to  the  lessor  without  reservation ; 
afterward  he  took  another  lease  of  the  premises  from  the  same  lessor, 
but  it  was  held  that  his  right  to  remove  did  not  revive.  When  the 
new  lease  was  made,  it  was  of  the  whole  estate,  including  the  building. 
This  differs  from  the  case  at  bar  only  in  the  fact  that  there  was  an 
interval  between  the  surrender  of  the  interest  under  the  first  lease 
and  the  gi-anting  of  the  second,  when  the  lessor  was  in  actual  posses- 
sion. But  the  acceptance  of  the  new  lease  and  occupation  under  it 
are  equivalent  to  a  surrender  of  the  premises  at  the  end  of  the  term. 
In  Loughran  v.  Ross,  45  N.Y.  792,  it  was  held  that,  if  a  tenant,  hav- 
ing a  right  to  remove  fixtures  erected  by  him  on  the  demised  prem- 
ises, accepts  a  new  lease  of  such  premises,  including  the  buildings, 
without  reservation  or  mention  of  any  claim  to  the  buildings,  and 
enters  upon  a  new  term  thereunder,  the  right  to  removal  is  lost,  not- 
withstanding his  occupation  has  been  continuous.  See  also  Ahell  v. 
Williams,  3  Daly,  17;  Merrill  y.  Judd,  14  Cal.  59;  Jungerman  v. 
Bovee,  19  Cal.  354;  Elwes  v.  Maw,  3  East,  38;  Tajdor  on  Landlord 
&  Tenant  (5th  ed.),  §  552;  2  Smith's  Lead.  Cas.  (7th  Am.  ed.)  228, 
245,  257. 

We  are  therefore  of  opinion  that  the  defendant  had  no  right  dur- 
ing the  second  term  to  remove  any  trade  fixtures  placed  there  dur- 
ing the  first.  If  any  of  the  articles  named  were  movable  chattels, 
as  the  defendant  contends,  the  plaintiff  cannot  recover  for  them;  but 
if  they  were  permanent  or  trade  fixtures,  the  plaintiff  may  recover 
for  their  removal. 

Case  to  stand  for  trial. 

Note.  —  See,  accord,  Wadman  v.  Burke,  147  Cal.  351 ;  Sanitary 
District  v.  Cook,  169  111.  184;  Hedderich  v.  Smith,  103  Ind.  203;  Bau- 
ernschmidt  Co.  v.  McColgan,  89  Md.  135;  St.  Louis  v.  N'elson,  108  Mo. 
App.  210;  Loughran  v.  Ross,  45  N.Y.  792;  Spencer  v.  Commercial 
Co.,  30  Wash.  520. 


SECT.  II.]  RADEY    V.    McCURDY.  695 

RADEY  V.   McCURDY. 

209  Pa.  306.     1904. 

Opinion  by  Mr.  Justice  Brown. 

This  was  a  bill  by  a  landlord  to  restrain  his  tenants  from  removing 
trade  fixtures  from  the  demised  premises.  A  preliminary  injunction 
was  awarded,  but  subsequently  dissolved.  Before  final  hearing  all 
the  articles  were  removed  by  the  tenants,  and  the  court's  decree  was 
that  they  pay  their  landlord  So400,  the  value  of  the  articles  removed, 
together  with  the  costs  of  suit. 

On  September  17,  1892,  the  appellee  leased  the  premises  described 
in  the  bill  to  John  C.  McCurdy  and  James  McCurdy,  trading  as 
McCurdy  Brothers,  for  the  term  of  ten  years  from  October  1,  1892. 
The  court  found  that  the  articles  enumerated  in  the  bill  were  trade 
fixtures  and  belonged  to  the  lessees  under  the  lease  of  September  17, 
1892.  The  legal  conclusion  of  the  learned  judge,  that  the  tenants  had 
the  right  to  remove  them  during  the  term  of  their  lease,  was,  there- 
fore, manifestly  correct,  and  under  the  facts  found,  the  landlord 
could  have  raised  no  question  if  they  had  been  removed  at  any  time 
prior  to  October  1,  1902.  Before  the  expiration  of  the  lease,  the 
tenants,  as  required  by  it,  gave  three  months'  notice  to  the  landlord 
of  their  intention  to  terminate  it. 

In  1899  John  C.  McCurdy,  as  found  by  the  court  below,  "sold  his 
interest  in  the  stock  of  goods,  wares  and  merchandise,  together  with 
the  machinery  and  fixtures,  contained  in  the  building  at  the  north- 
west corner  of  Front  street  and  Susquehanna  avenue,  to  James  Mc- 
Curdy." On  July  11,  1902,  a  new  lease  was  executed  by  the  appellee 
to  the  said  James  McCurdj^  and  Samuel  McCurdy,  another  brother, 
trading  under  the  same  firm  name  of  McCurdy  Brothers,  and  James 
and  Samuel  became  the  lessees  under  the  agreement  of  that  date, 
which  defines  the  lease  to  be  an  "extended  and  renewed"  lease  of 
September  17,  1892,  at  a  reduced  rental.  The  appellants  removed  all 
the  fixtures  before  October  1,  1903,  the  date  of  the  expiration  of  the 
extended  and  renewed  lease. 

Under  the  foregoing  facts,  the  court  below  made  the  decree  men- 
tioned for  the  reason  that,  even  if  the  lease  of  July  11,  1902,  is  to  be 
treated  as  a  renewal  of  the  lease  of  1892,  between  the  same  ]:)ai1ies, 
the  appellants  had  no  right  to  remove  the  fixtures  after  the  expiration 
of  the  first  lease,  in  the  absence  of  a  clause  in  the  second  one  reserving 
the  right  to  do  so  at  its  expiration.  Though  the  lessees  under  the  first 
lease  had  an  unquestioned  right  to  remove  the  fixtures  at  any  time 
before  October  1,  1902,  and,  if  they  had  done  so,  could  immediately 
after  that  date  have  reinstalled  them  in  the  premises  with  the  same 
unquestioned  right  to  remove  them  at  any  time  before  October  1, 
1903,  the  view  of  the  learned  court  below  is  that  they  became  the 


696  RADEY    V.    McCURDY.  [CHAP.  IV. 

property  of  the  landlord,  because  they  were  not  removed  and  rein- 
stalled, and  there  is  no  clause  in  the  "extended  and  renewed"  lease 
reserving  the  right  of  the  tenants  to  remove  them  before  it  expired. 
Though  this  has  been  declared  to  be  the  law  by  some  courts,  and  the 
learned  judge  had  authority  outside  of  this  state  to  sustain  him,  we 
cannot  subscribe  to  such  a  doctrine  as  being  either  in  harmony  with 
reason  or  consistent  with  fair  deahng  between  man  and  man. 

When  a  tenant  attaches  to  the  land  fixtures  necessary  for  him  in 
the  conduct  of  his  business,  the  presumption  is  that,  at  the  expiration 
of  his  lease,  he  will  remove  them;  and  it  is  his  right  to  do  so.  They 
are  not  put  in  for  the  benefit  of  the  landlord,  and,  until  the  tenant, 
after  his  term  expires,  leaves  them  on  the  premises  in  which  he  no 
longer  has  any  interest,  no  intention  can  be  imputed  to  him  to  aban- 
don them  to  his  lessor.  Hill  v.  Sewald,  53  Pa.  271;  Watts  v.  Lehman, 
107  Pa.  106.  There  is  a  distinct  finding  that  McCurdy  Brothers,  the 
lessees  under  the  lease  of  1892,  never  intended  to  abandon  their 
trade  fixtures.  One  of  the  brothers,  owning  and  having  them  in  his 
possession,  on  July  11,  1902,  entered  with  another  brother  into  the 
''extended  and  renewed"  lease.  The  possession  of  the  premises  and 
the  fixtures  remained  unbroken  from  1892  to  1903  in  at  least  one  of 
the  present  appellants;  and  yet,  because  he  did  not,  on  the  last  day 
of  September,  1902,  remove  them  and  put  them  back  on  the  follow- 
ing day,  when  the  "extended  and  renewed"  lease  began,  and  the 
lessees  under  it  failed  to  formally  reserve  the  right  to  remove  them  at 
the  expiration  of  the  "extended  and  renewed"  term,  an  intention  is 
to  be  imputed  of  an  abandoimaent  of  them  to  the  landlord.  Abandon- 
ment to  him  being  a  question  of  intention,  it  cannot  be  that,  under 
the  undisputed  facts  in  this  case,  the  appellants  ever  intended  to  or 
did  abandon  their  trade  fixtures.  To  have  removed  them  one  day 
and  put  them  back  the  next  would  have  been  a  vain  and  useless 
thing,  which  the  law  requires  of  no  one;  and  it  offends  reason  to  say 
that  the  landlord  had  a  right  to  regard  his  tenants'  property  as 
abandoned  to  him  because  one  of  them,  who  was  to  continue  as  such 
for  another  year,  needing  the  same  fixtures  in  his  unchanged  business 
into  which  he  had  taken  another  person,  had  not,  when  the  lease  was 
extended  and  renewed,  inserted  a  clause  giving  the  tenants  the  right 
to  remove  the  fixtures  at  the  end  of  the  extended  term.  It  will  profit 
nothing  to  review  the  very  many  cases  brought  to  our  attention  by 
the  learned  counsel  for  the  appellee  to  support  the  decree  of  the 
court  below.  It  is  sufficient  to  say  that  none  of  our  own  do  so.  They 
are  rather  in  accord  with  the  view  which  we  entertain,  that  the 
plaintiff's  bill  should  have  been  dismissed. 

"That  a  tenant  who  erects  fixtures  for  the  benefit  of  his  trade  or 
business  may  remove  them  from  the  demised  premises,  is  an  estab- 
lished doctrine  of  the  law,  but  with  this  qualification  —  that  the 
removal  be  made  during  the  term.    After  the  term  they  become 


SECT.  II.]  RADEY    V.    McCURDY.  697 

inseparable  from  the  freehold  and  can  neither  be  removed  by  the 
tenant  nor  recovered  by  him  as  personal  chattels  by  an  action  of 
trover,  or  for  goods  sold  and  delivered.  White  v.  Arnclt,  1  Wh.  94, 
and  the  cases  cited  in  the  argument.  If  a  tenant  remain  in  possession 
after  the  expiration  of  his  term,  and  perform  all  the  conditions  of  the 
lease,  it  amounts  to  a  renewal  of  the  lease  from  year  to  year,  and  I 
take  it  he  would  be  entitled  to  remove  fixtures  during  the  year." 
Davis  V.  Moss,  38  Pa.  346.  "It  is  a  well-settled  rule  of  law,  that  a 
tenant  for  years  who  erects  fixtures  for  the  benefit  of  his  trade  or 
business,  may,  at  any  time  during  the  term,  remove  them  from  the 
demised  premises;  but  cannot  after  the  expiration  thereof  unless  he 
remain  in  possession  and  hold  over,  so  as  to  create  an  implied  renewal 
of  the  lease."  Darrah  v.  Baird,  101  Pa.  265.  In  the  late  case  of 
Donnelly  v.  Frick,  207  Pa.  597,  we  said:  "The  presumption  of  the 
law,  being  in  favor  of  trade,  is  that  a  tenant  does  not  intend  to  make 
his  trade  fixtures  part  of  the  realty  for  the  permanent  benefit  of  his 
landlord,  but  will  remove  them  before  the  end  of  his  term;  and  it  is 
only  when  he  leaves  without  removing  them  during  the  term  that 
an  intention  of  making  a  gift  of  them  to  the  landlord  is  to  beim- 
outed  to  him.  Hill  v.  Sewald,  53  Pa.  271;  Watts  v.  Lehman,  107  Pa. 
106.  If,  during  the  term,  no  intention  can  be  imputed  to  the  tenant 
to  make  a  gift  to  his  landlord  of  fixtures,  which  he  had  attached  to  the 
land  for  the  use  of  his  business,  and  he  has  a  right  to  remove  them 
during  the  tenancy,  the  same  rule  ought  to  and  does  apply,  when, 
by  permission  of  the  landlord,  even  without  a  formal  renewal  or 
extension  of  the  lease,  he  continues  to  remain  on  the  premises  for  a 
definite  or  indefinite  term.  During  such  period,  in  the  absence  of  any 
agreement  to  the  contrary,  his  intention  as  to  his  fixtures  remains 
unchanged,  and  his  right  to  remove  them  is  unaffected  by  his  holding 
over."  Of  great  weight  is  the  following  from  the  learned  Judge 
CooLEY,  in  Kerr  v.  Kingsbury,  39  Mich.  150:  "The  right  of  a  tenant 
to  remove  the  erections  made  by  him  in  furtherance  of  the  purpose 
for  which  the  premises  were  leased,  is  conceded.  The  principle  which 
permits  it  is  one  of  public  policy,  and  has  its  foundation  in  the 
interest  which  society  has  that  every  person  shall  be  encouraged  to 
make  the  most  beneficial  use  of  his  property  the  circumstances  will 
admit  of.  On  the  other  hand,  the  requirement  that  the  tenant  shall 
remove  during  his  term  whatever  he  proposes  to  claim  a  right  to 
remove  at  all,  is  based  upon  a  corresponding  rule  of  public  policy,  for 
the  protection  of  the  landlord,  and  which  is  that  the  tenant  shall  not 
be  suffered,  after  he  has  surrendered  the  premises,  to  enter  upon  the 
possession  of  the  landlord  or  of  a  succeeding  tenant,  to  remove  fix- 
tures which  he  might  and  ought  to  have  taken  away  before.  A  regard 
for  the  succeeding  interests  is  the  only  substantial  reason  for  the  rule 
which  requires  the  tenant  to  remove  his  fixtures  during  the  term: 
indeed,  the  law  does  not  in  strictness  require  of  him  that  he  shall 


698  HOLBROOK    V.    CHAMBERLAIN.  [CHAP.  FV. 

remove  them  during  the  term,  but  only  before  he  surrenders  posses- 
sion, and  during  the  time  that  he  has  a  right  to  regard  himself  ar 
occupying  in  the  character  of  tenant.  Penton  v.  Robart,  2  East,  88 
Weeton  v.  Woodcock,  7  M.  &  W.  14.  But  why  the  right  should  be 
lost  when  the  tenant,  instead  of  surrendering  possession,  takes  a  re- 
newal of  his  lease,  is  not  very  apparent.  There  is  certainly  no  reason 
of  public  policy  to  sustain  such  a  doctrine;  on  the  contrary,  the  rea- 
sons which  saved  to  the  tenant  his  right  to  the  fixtures  in  the  first 
place  are  equally  influential  to  save  to  him  on  a  renewal  what  was 
unquestionably  his  before.  What  could  possibly  be  more  absurd  than 
a  rule  of  law  which  should  in  effect  say  to  the  tenant  who  is  about  to 
obtain  a  renewal : '  If  you  will  be  at  the  expense  and  trouble,  and  incur 
the  loss,  of  removing  your  erections  during  the  term,  and  of  after- 
wards bringing  them  back  again,  they  shall  be  yours;  otherwise  you 
will  be  deemed  to  abandon  them  to  your  landlord.' " 

The  decree  of  the  court  below  is  reversed  and  plaintiff's  bill  dis- 
missed at  his  costs,  which  include  those  on  this  appeal. 

Note.  —  See,  accord,  Daly  v.  Simonson,  126  Iowa  716;  Thomas  v. 
Gayle,  134  Ky.  330;  Kerr  v.  Kingsbury,  39  Mich.  150;  Wright  v. 
Macdonnell,  88  Tex.  140,  150;  Second  National  Bank  v.  Merrill  Co., 
69  Wis.  501. 


HOLBROOK   V.   CHAMBERLAIN. 

116  Mass.  155.     1874. 

The  plaintiff  leased  certain  premises  to  the  defendants,  and  the 
lessees  covenanted,  among  other  things,  "to  quit  and  deliver  up  the 
premises  and  all  future  erections  and  additions  to  or  upon  the  same, 
to  the  lessor  or  his  assigns  peaceably  and  quietly,  at  the  end  of  the 
term,  in  as  good  order  and  condition  (reasonable  use  and  wearing 
thereof,  and  damages  by  fire  or  other  casualties  excepted)  as  the 
same  now  are  or  may  be  put  into  by  the  lessor,  or  those  having  his 
estate  in  the  premises." 

The  auditor  found  that  the  premises  were  used  by  the  defendants 
from  April  1,  1865,  mitil  1866,  w^hen  they  were  changed  to  a  cotton 
mill  and  afterwards  used  as  such;  the  machineiy  used  therein  was 
operated  by  water  power  in  the  usual  mamier;  that  in  1866  the  de- 
fendants placed  in  the  mill  additional  machinery  consisting  of  coun- 
ter-shafting, pulleys,  hangers  and  belts;  the  counter-shaft  was  belted 
from  the  main  shaft,  and  with  the  pullej's  and  hangers  appertaining 
thereto,  was  fastened  to  the  timbers  or  floors  of  the  building  by 
bolts  and  screws,  and  was  connected  to  the  machines  by  belts.  AU 
this  machinery  was  purchased  for  and  adapted  to  the  use  of  the  mil 


SECT.  II  1  HOLBROOK    V.    CHAMBERLAIN.  699 

as  a  cotton  mill,  and  all  of  it  could  be  detached  and  removed  fron 
the  building  without  substantial  injury  thereto  or  to  the  machines. 
On  December  1,  1868,  the  defendants  ceased  to  occupy  the  premises, 
and  E.  Fisher  &  Sons  occupied  the  same  as  lessees  of  the  defendants. 
The  plaintiff  assented  to  this  assigimient  by  writing  under  seal.  In 
1869,  E.  Fisher  &  Sons  removed  from  the  premises  the  said  counter- 
shafting,  pulleys  and  hangers  to  the  value  of  $220,  and  the  aforesaid 
belts  to  the  value  of  850,  and  converted  them  to  their  own  use. 

Gray,  C.J.  It  was  admitted  at  the  argument,  that  at  the  begin- 
ning of  the  term  there  was  no  machinery  on  the  premises,  except 
the  main  shaft.  The  counter-shafting,  pulleys,  hangers  and  belts, 
the  portable  boiler  and  the  steam  pipes  connected  with  it,  were  either 
trade  fixtures,  removable  by  the  lessees  during  the  term,  or  personal 
chattels.  Poole's  Case,  1  Salk.  368;  Lawton  v.  Lawton,  3  Atk.  13; 
Winslow  V.  Merchants  Ins.  Co.,  4  Met.  306,  311;  McLaughlin  v. 
Nash,  14  Allen,  136;  Pierce  v.  George,  108  Mass.  78.  The  fact  that 
the  lease  contained  an  agreement  of  the  lessor  to  sell  the  premises 
to  the  lessees  did  not  affect  their  rights  in  this  respect. 

The  right  of  a  tenant  to  remove  trade  fixtures  may  doubtless  be 
qualified  by  the  covenants  in  the  lease.  But  we  are  of  opinion  that 
the  covenant  to  deliver  up  in  good  order  "all  future  erections  or 
additions"  to  or  upon  the  premises  is  limited,  in  purpose  and  effect, 
to  new  buildings  erected  or  old  buildings  added  to  —  putting  such 
erections  and  additions  upon  the  same  footing,  in  respect  of  the  obli- 
gation to  keep  in  repair,  as  the  buildings  upon  the  premises  at  the 
time  of  the  execution  of  the  lease;  and  cannot  be  extended  so  as  to 
deprive  the  tenants  of  the  right  to  remove  trade  fixtures,  much  less 
personal  property,  put  by  them  upon  the  premises  during  the  term. 
Bishop  V.  Elliott,  11  Exch.  113. 

In  Naylor  v.  Collinge,  1  Taunt.  19,  the  things  removed  were  "  build- 
ings," coming  within  the  very  w^ords  of  the  covenant;  and  yet  such 
of  them  only  as  were  affixed  to  the  freehold,  and  not  such  as  rested 
upon  blocks,  were  held  to  be  included.  In  all  the  other  cases  cited 
for  the  plaintiff  upon  this  point,  the  covenant  either  expressly  named 
the  fixtures  or  comprised  ''all  improvements." 

Note.  —  See  Gett  v.  McManus,  47  Cal.  56;  Fox  v.  Lynch,  71  N.J. 
Eq.  537;  Thresher  v.  East  London  Water  Works  Co.,  2  B.  &  C.  608. 


700  PENHALLOW    V.    DWIGHT.  [CHAP.  V. 


I 


CHAPTER  V. 
EMBLEMENTS. 


PENHALLOW  v.  DWIGHT. 

7  Mass.  34.     1810. 

Trespass  for  breaking  and  entering  the  plaintiff's  close,  and  cut^ 
ting  down  and  carrying  away  his  corn  there  growing. 

The  parties  submitted  the  cause  to  the  determination  of  the  court 
jpon  an  agi'eed  statement  of  facts.  The  defendant,  at  the  time 
R^hen,  etc.,  was  a  constable  of  Belchertown,  in  which  the  locus  in  quo 
was  situated,  and  he  entered  the  close,  and  cut  and  carried  away 
the  plaintiff's  corn  thereon  gi'owing,  and  then  fully  ripe  and  fit  to  be 
gathered;  claiming  authority  so  to  do,  by  virtue  of  an  execution  to 
hun  directed,  then  in  full  force,  and  issued  in  due  form  of  law,  upon 
a  judgment  of  the  Court  of  Common  Pleas,  for  the  county  of  Hamp- 
shire, against  the  plaintiff,  and  in  favor  of  one  Eldad  Parsons.  The 
said  corn  being  sold  by  the  defendant  at  public  auction,  according 
to  law,  produced  the  sum  of  twenty-two  dollars,  forty-nine  cents, 
which  sum,  after  deducting  his  fees,  and  the  expenses  of  gathering 
the  corn,  the  defendant  endorsed  on  the  said  execution.  If  the  court 
should  be  of  opinion  that  the  defendant  had  a  right,  by  virtue  of 
the  authority  aforesaid,  to  enter  the  said  close,  and  cut  and  carry 
away  the  plaintiff's  corn,  in  manner  and  for  the  cause  aforesaid,  it 
was  agi'eed  that  judgment  should  be  rendered  for  the  defendant  for 
his  costs ;  otherwise  for  the  plaintiff,  for  twenty-five  dollars  damage, 
with  his  costs. 

Curia.  As  the  defendant  had  the  right,  and  indeed  was  obliged, 
by  the  duty  of  his  office,  to  enter  the  close  of  the  plaintiff,  and  to 
seize  any  personal  property  of  the  plaintiff,  whereby  he  might  satisfy 
the  execution  he  then  held  against  the  plaintiff;  the  only  question 
is,  whether  corn,  then  in  a  proper  state  to  be  gathered,  but  found 
standing,  might  lawfully  be  cut  down  and  disposed  of,  to  raise  the 
money  due  upon  the  execution.  And  we  have  no  doubt  that  corn, 
or  any  other  product  of  the  soil,  raised  annually,  by  labor  and  culti- 
vation, is  personal  estate;  and  would  go  to  the  executor,  and  not  to 
the  heir,  on  the  decease  of  the  proprietor.  It  is  therefore  liable  to 
be  seized  on  execution,  and  may  be  sold  as  other  personal  estate. 

An  entry,  for  the  purpose  of  taking  unripe  corn,  or  other  produce 


CHAP,  v.]  BRACKETT    V.    GODDARD.  701 

which  would  yield  nothing,  but  in  fact  be  wasted  and  destroyed  by 
the  very  act  of  severing  it  from  the  soil,  would  not  be  protected  by 
this  decision. 

Let  the  defendant  have  judgment  for  his  costs. 

Note.  —  McGee  v.  Walker,  106  Mich.  521.  As  between  the  heirs 
and  the  administrator,  the  latter  is  entitled  to  crops  gi'owing  on 
lands  of  the  deceased. 

In  Smith  v.  Barham,  2  Dev,  Eq.  (N.C.)  420,  Ruffin,  C.J.,  said 
(p.  423) :  "The  crops  growing  on  the  land  at  the  time  of  the  testator's 
death,  go  to  the  executor  as  against  the  heir,  but  as  between  the 
executor  and  the  devisee,  the  latter  is  entitled  to  them.  The  devisee 
takes  the  land  by  the  intention  of  the  testator,  with  everything  on 
it;  for  as  the  devise  carries  the  land  against  the  heir,  so  it  does  the 
crop  against  the  executor.  The  rule  is  so  strong,  that  if  the  devise 
be  for  life  with  remainder  over,  and  the  first  taker  die  before  sever- 
ance of  the  crop  growing  at  the  death  of  the  testator,  it  goes  over 
with  the  land  to  the  remainder-man,  in  preference  to  the  personal 
representative  of  the  first  taker." 


BRACKETT  v.  GODDARD. 

54  Me.  309.     1866. 

On  Report. 

Assumpsit  on  account  annexed,  for  S60,  for  money  paid  by  the 
plaintiff  to  the  defendant,  for  logs  and  down  timber,  the  title  to 
which,  the  plaintiff  alleged,  was  not  in  the  defendant  at  the  time 
of  sale.  The  writ  also  contained  a  count  for  money  had  and  received 
for  same  amount. 

It  appeared  from  the  report  that  the  defendant  owned,  in  the 
summer  of  1863,  a  timber  lot  in  Hermon;  that  he  cut  down  a  large 
number  of  hemlock  trees  thereon,  peeled  the  bark  therefrom  and 
removed  it  from  the  lot,  —  intending  to  prepare  the  trees  by  cutting 
off  the  tops  and  haul  them  off  as  logs  to  be  sawed  during  the  ensuing 
winter.  The  trees  were  severed  from  the  stumps,  and  they  lay  as 
they  fell,  with  the  tops  on.  In  the  felling  the  choppei-s  endeavored, 
so  far  as  practicable,  to  have  them  lie  in  a  good  position  for  peeling, 
and  afterwards  hauling  them  off. 

In  the  fore  part  of  the  fall  of  the  same  year,  the  defendant  con- 
veyed the  lot  by  deed  of  waiTanty,  without  any  reservations,  to 
one  Works.  On  the  20th  of  the  following  November,  after  Works 
had  entered  into  possession  of  the  lot  under  his  deed,  the  defendant 
sold  the  hemlocks  thus  cut,  to  the  plaintiff,  by  a  bill  of  sale.  To  re- 
cover back  the  money  paid  for  the  bill  of  sale,  this  action  was  brought. 


702  BRACKETT    V.    GODDARD.  [CHAP.  V. 

Appleton,  C.J.  This  is  an  action  brought  to  recover  the  price  of 
certain  logs  sold  by  the  defendant  to  the  plaintiff.  The  claim  is 
based  upon  an  alleged  failure  of  the  defendant's  title. 

The  defendant,  while  owning  a  lot  of  land  in  Hermon,  cut  down 
a  quantity  of  hemlock  trees  thereon.  After  peehng  the  bark  there- 
from and  hauling  it  off  the  land,  he  conveyed  the  lot  to  one  Works, 
by  deed  of  warranty,  without  any  reservation  whatever.  At  the 
date  of  this  deed,  the  hemlock  trees  in  controversy  were  lying  on 
the  lot  where  they  had  been  cut,  with  the  tops  remaining  thereon. 

The  defendant,  after  his  deed  of  the  land  to  Works,  conveyed  the 
hemlocks  cut  by  him  to  the  plaintiff.  Works,  the  grantee  of  the  de- 
fendant, claimed  the  same  by  virtue  of  his  deed.  The  question  pre- 
sented is  whether  the  title  to  the  logs  is  in  the  plaintiff  or  in  Works. 

Manure  made  upon  a  farm  is  personal  property  and  may  be  seized 
and  sold  on  execution.  Staples  v.  Emery,  7  Greenl.  201.  So,  wheat 
or  corn  growing  is  a  chattel  and  may  be  sold  on  execution.  Whipple 
V.  Tool,  2  Johns.  419.  Yet  it  is  held  that  gi-owing  crops  and  manure, 
lying  upon  the  land,  pass  to  the  vendee  of  the  land,  if  not  excepted 
in  the  deed,  2  Kent,  346,  or  by  statute,  as  in  this  State  by  R.  S.,  c.  81, 
§  6,  clause  6.  Fencing  materials  on  a  farm,  which  have  been  used  as 
a  part  of  the  fences,  but  are  temporarily  detached,  without  any  in- 
tent of  diverting  them  from  their  use,  as  such,  are  a  part  of  the  free- 
hold, and  pass  by  a  conveyance  of  the  farm  to  a  purchaser.  Goodrich 
V.  Jones,  2  Hill,  142.  Hop  poles,  used  necessarily  in  cultivating  hops, 
which  were  taken  down  for  the  purpose  of  gathering  the  crop  and 
piled  in  the  yard,  with  the  intention  of  being  replaced  in  the  season 
of  hop-raising,  are  part  of  the  real  estate.  Bishop  v.  Bishop,  1  Kevan, 
123. 

Timber  trees,  if  blown  down,  or  severed  by  a  stranger,  pass  by  a 
deed  of  the  land.  "We  think  that  it  cannot  admit  of  a  doubt,"  re- 
marks Richardson,  C.J.,  in  Kittredge  v.  Wood,  3  N.H.  503,  "  that 
trees  felled  and  left  upon  the  land,  fruit  upon  trees,  or  fallen  and  left 
under  the  trees  where  it  grew,  and  stones  lying  upon  the  earth,  go 
with  the  land,  if  there  be  no  reservation."  The  hemlock  trees  were 
lying  upon  the  ground.  The  tops  and  branches  were  remaining  upon 
them.  They  were  not  excepted  from  the  defendant's  deed,  and, 
being  in  an  unmanufactured  state,  they  must,  from  analogy  to  the 
instances  already  cited,  pass  with  the  land.  Such,  too,  is  the  statute 
of  1867,  c.  88,  defining  the  ownership  of  down  timber.  It  would  have 
been  otherwise,  had  they  been  cut  into  logs  or  hewed  into  timber. 
Cook  V.  Whitney,  16  Illinois,  481. 

Note.  —  Cf.  Noble  v.  Sylvester,  42  Vt.  146. 


I 


CHAP,  v.]  COKE    UPON    LITTLETON.  703 

LITTLETON,   TENURES,  §  68. 

Tenant  at  will  is,  where  lands  or  tenements  are  let  by  one  man  tc 

another,  to  have  and  to  hold  to  him  at  the  will  of  the  lessor,  by  force 
of  which  lease  the  lessee  is  in  possession.  In  this  case  the  lessee  is 
called  tenant  at  will,  because  he  hath  no  certain  nor  sure  estate,  for 
the  lessor  may  put  him  out  at  what  time  it  pleaseth  him.  Yet  if  the 
lessee  soweth  the  land,  and  the  lessor,  after  it  is  sown  and  before  the 
corn  is  ripe,  put  him  out,  yet  the  lessee  shall  have  the  com,  and  shall 
have  free  entry,  egress  and  regi-ess  to  cut  and  carry  away  the  corn, 
because  he  knew  not  at  what  time  the  lessor  would  enter  upon  him. 
Otherwise  it  is  if  tenant  for  years,  which  knoweth  the  end  of  his  term, 
doth  sow  the  land,  and  his  term  endeth  before  the  corn  is  ripe.  In 
this  case  the  lessor,  or  he  in  the  reversion,  shall  have  the  corn,  be- 
cause the  lessee  knew  the  certainty  of  his  term,  and  when  it  would 
end. 


COKE  UPON  LITTLETON,  55  a,  b. 

"  Yet  if  the  lessee  soweth  the  land,  and  the  lessor  after  it  is  sown,  etc." 
The  reason  of  this  is,  for  that  the  estate  of  the  lessee  is  uncertain,  and 
therefore  lest  the  ground  should  be  unmanured,  which  should  be 
hurtful  to  the  Commonwealth,  he  shall  reap  the  crop  which  be  sowed 
in  peace,  albeit  the  lessor  doth  determine  his  will  before  it  be  ripe. 
And  so  it  is  if  he  set  roots,  or  sow  hemp  or  flax,  or  any  other  annual 
profit,  if  after  the  same  be  planted,  the  lessor  oust  the  lessee;  or  if  the 
lessee  dieth,  yet  he  or  his  executors  shall  have  that  year's  crop.  But  if 
he  plant  young  fruit  trees,'or  young  oaks,  ashes,  elms,  etc.,  or  sow  the 
gi'ound  with  acorns,  etc.,  there  the  lessor  may  put  him  out  notwith- 
standing, because  they  v/ill  yield  no  present  annual  profit.  And  this 
is  not  only  proper  to  a  lessee  at  will,  that  when  the  lessor  determines 
his  will  that  the  lessee  shall  have  the  corn  sown,  etc.,  but  to  every 
particular  tenant  that  hath  an  estate  uncertain,  for  that  is  the  reason 
which  Littleton  expresseth  in  these  words  (because  he  hath  no  certain 
nor  sure  estate) .  And  therefore  if  tenant  for  life  soweth  the  ground  and 
dieth,  his  executors  shall  have  the  corn,  for  that  his  estate  was  uncer- 
tain, and  determined  by  the  act  of  God.  And  the  same  law  is  of  the 
lessee  for  years  of  tenant  for  life.  So  if  a  man  be  seised  of  land  in 
the  right  of  his  wife,  and  soweth  the  ground,  and  he  dieth,  liis  execu- 
tors shall  have  the  corn,  and  if  his  wife  die  before  him  he  shall  have 
the  corn.  But  if  husband  and  wife  be  joint-tenants  of  the  land,  and 
the  husband  soweth  the  ground,  and  the  land  surviveth  to  the  wife, 
it  is  said  that  she  shall  have  the  corn.  If  tenant  pur  terme  d'auter  vie 
soweth  the  ground,  and  cestuy  que  vie  dieth,  the  lessee  shall  have  the 
corn.  If  a  man  seised  of  lands  in  fee  hath  issue  a  daughter  and.  dieth, 


704  KINGSBURY    V.    COLLINS.  [CHAP.  V. 

his  wife  being  enseint  with  a  son,  the  daughter  soweth  the  ground,  the 
son  is  born,  yet  the  daughter  shall  have  the  corn,  because  her  estate 
was  lawful,  and  defeated  by  the  act  of  God,  and  it  is  good  for  the 
Commonwealth  that  the  ground  be  sown.  But  if  the  lessee  at  will 
sow  the  ground  with  corn,  etc.,  and  after  he  himself  determine  his 
will  and  refuseth  to  occupy  the  ground,  in  that  case  the  lessor  shall 
have  the  corn,  because  he  loseth  his  rent.  And  if  a  woman  that 
holdeth  land  durante  viduitate  sua  soweth  the  ground  and  taketh 
husband,  the  lessor  shall  have  the  emblements,  because  that  the  de- 
termination of  her  own  estate  grew  by  her  own  act.  But  where  the 
estate  of  the  lessee  being  uncertain  is  defeasible  by  a  right  paramount, 
or  if  the  lease  determine  by  the  act  of  the  lessee,  as  by  forfeiture,  con- 
dition, etc.,  there  he  that  hath  the  right  paramount,  or  that  entereth 
for  any  forfeiture,  etc.,  shall  have  the  corn. 

Note.  —  The  executor  of  the  tenant  for  life,  and  not  the  remain- 
derman, is  entitled  to  the  crop  sown  by  the  tenant.  Thornton  v. 
Burch,  20  Ga.  791. 

A,  tenant  for  life,  leased  to  B  for  years.  B  sowed  the  land  while  he 
had  reason  to  suppose  that  A  was  near  his  death  from  a  fatal  disease. 
B  was  held  entitled  to  the  crop.  Bradley  v.  Bailey,  56  Conn.  374. 

A  leases  land  to  B,  at  will.  B  sowed  the  land.  A  sold  to  C.  B  was 
held  entitled  to  the  crop.  Brown  v.  Thurston,  56  ]\Ie.  126. 

Land  was  devised  to  A  during  her  widowhood.  She  married  while 
crops  were  growing  and  was  held  not  entitled  to  the  crops.  Hawkins 
v.  Skeggs's  Adm'r,  10  Humph.  (Tenn.)  31. 


KINGSBURY  v.  COLLINS. 

4  Bing.  202.     1827. 

Best,  C.J.  The  facts  of  the  case  are  shortly  these.  The  plaintiff 
complains  of  an  assault  and  imprisonment.  The  defendants,  taking 
no  notice  of  the  alleged  imprisonment  in  the  first  count,  answer,  we 
were  in  possession  of  a  close  and  some  teazles ;  you  came  to  cut  the 
teazles,  and  we  therefore  turned  you  out.  The  plaintiff  replies,  you 
might  have  been  in  possession  of  the  close  and  teazles,  but  you  were 
only  so  under  R.  N.  Curtis,  to  whom  W.  Curtis  was  tenant  from  year 
to  year,  and  before  you  had  any  interest  in  the  premises,  he  agi'eed 
with  me  and  Derrick  to  cultivate  teazles,  of  Vv'hich  he  was  to  have  one 
half,  and  I  and  Derrick  the  other;  we  cultivated  them  accordingly, 
and  I  entered  to  take  what  I  planted. 

The  court  are  of  opinion,  under  these  circumstances,  that  it  is  im- 
material in  whom  the  possession  of  the  close  was  for  general  purposes. 
Supposing  it  to  have  been  in  the  defendant  Collins,  if  the  person  from 


CHAP,  v.]  KINGSBURY    V.    COLLINS.  70f 

whom  he  derived  title  had  previously  made  a  demise  from  year  t( 
year,  and  the  party  taking  under  such  a  demise  had  planted  during 
his  tenancy,  the  teazles  he  had  planted  would  have  belonged  to  him 
as  emblements,  even  though  his  tenancy  should  have  been  deter- 
mined before  they  were  gathered. 

It  is  laid  down  by  Littleton,  §  68,  that  a  lessee  at  will  is  entitled 
to  emblements  unless  he  determines  his  own  estate,  and  though  it  is 
otherwise  vnth  a  tenant  for  years,  who  knows  the  end  of  his  term,  yet 
Lord  Coke  says,  "  This  is  not  only  proper  to  a  lessee  at  will,  that  when 
the  lessor  determines  his  will  the  lessee  shall  have  the  corn  sown,  etc., 
but  to  every  particular  tenant  that  hath  an  estate  incertaine,  for 
that  is  the  reason  which  Littleton  expresseth  in  these  words.  Pur  ceo 
que  il  nad  ascun  certaine  ou  sure  estate."  Co.  Lit.  55  b.  A  tenant  from 
year  to  year  does  not  know  in  what  year  his  lessor  may  determine 
the  tenancy  by  half  a  year's  notice  to  quit:  in  that  respect  at  least, 
he  has  an  uncertain  estate :  the  public  interest  requires  that  he  who 
grows  a  crop  shall  have  a  right,  v/here  his  landlord  determines  the 
tenancy,  to  claim  it  as  emblements;  otherwise  every  tenant  from 
year  to  year  whose  holding  commences  at  Michaelmas,  and  who 
plants  his  crop  early  in  the  spring,  may,  by  a  notice  to  quit  given  at 
Lady-day,  be  deprived  of  the  fruit  of  his  labours  whenever  the  har- 
vest is  protracted  beyond  Michaelmas.  Therefore,  although  the  ten- 
ancy of  W.  Curtis  might  have  been  determined  before  the  teazles 
were  mature,  yet  he  and  the  plaintiff  had  a  right  to  enter  for  the 
purpose  of  gathering  the  teazles  which  the  plaintiff  had  planted  dur- 
ing the  tenancy.  It  has  been  objected  that  it  does  not  appear  that 
William  Curtis's  interest  continued  at  the  time  of  his  entering  into 
the  agreement  with  Derrick  and  the  plaintiff;  but  it  is  stated  that 
he  made  the  agreement  being  so  possessed  (that  is,  possessed  under 
the  demise  from  R.  N.  Curtis),  and  upon  general  demurrer,  at  least, 
that  is  a  sufficient  allegation  of  his  title.  Where  a  tenancy  expires, 
not  by  efflux  of  time,  but  by  some  act  determining  the  tenancy,  it  is 
for  the  party  who  asserts  the  determination  of  the  tenancy  to  shew 
that  such  act  has  taken  place.  A  tenancy  from  year  to  year  can  only 
end  by  some  act  on  the  part  of  the  lessor  or  lessee,  and  in  that  re 
spect  differs  from  a  term  for  a  certain  number  of  years.  We  are  o! 
opinion,  therefore,  that  it  sufficiently  appears  upon  these  pleadings 
that  at  the  time  of  the  trespasses  complained  of,  the  plaintiff  had  a 
right  to  be  in  the  close  in  question  for  the  purpose  of  gathering  his 
teazles,  and  that  the  replication  is  a  sufficient  answer  to  the  pleas. 

The  second  and  third  set  of  pleas  justify  the  imprisomncnt  com- 
plained of  in  the  plaintiff's  second  and  third  count,  on  the  ground 
that  he  was  trespassing  on  the  defendant's  property;  but  although 
that  might  be  a  justification  of  a  removal,  if  the  plaintiff  could  not 
shew  a  right  to  remain  where  he  was,  it  has  never  been  lioldcn  of 
itself  a  justification  of  an  imprisonment. 

Judgment  for  the  plaintiff. 


706  SIMPKINS    V.    ROGERS.  [cHAP.  V. 

SIMPKINS  V.  ROGERS. 

15  111.  397.     1854. 

Treat,  C.J.  This  was  an  action  of  trover,  brought  by  Simpkins 
against  Rogers,  to  recover  the  value  of  the  crops  raised  on  a  certain 
tract  of  land  in  the  year  1853.  The  plaintiff  proved  this  state  of  facts. 
Bache,  being  the  owner  of  the  land  in  question,  conveyed  the  same 
to  the  plaintiff  on  the  30th  of  Noveml^er,  1852.  The  deed  was  ac- 
knowledged on  the  3d,  and  recorded  on  the  24th  of  December,  1852. 
The  defendant  raised  wheat,  saffron,  and  osage  orange  plants  on 
the  land  in  1853,  to  the  value  of  S500,  and  appropriated  the  same 
to  his  own  use  before  the  commencement  of  this'  suit.  In  the  spring 
of  1853,  the  plaintiff  notified  the  defendant  not  to  sow  or  plant  the 
land;  and  in  the  fall  of  that  year,  he  gave  him  notice  not  to  harvest 
or  remove  the  crops.  The  defendant  read  in  evidence  a  letter  from 
Bache  to  himself,  dated  the  12th  of  June,  1852,  as  follows:  "I  have 
no  objections  to  your  using  the  piece  of  land  you  speak  of,  but  hope 
you  will  leave  it  in  good  order,  and  seed  it  down  with  timothy  or 
redtop  when  you  are  done  with  it.  I  do  not  know  that  I  would  like 
to  sell  it  at  present,  as  I  might,  by  so  doing,  injure  the  sale  of  the 
remaining  part,  as  it  would  probably  be  an  object  to  the  purchaser 
to  have  the  privilege  of  both  sides  of  the  railroad.  I  am  willing  to  sell 
the  whole  that  I  have  there,  provided  I  can  get  a  fair  price."  He 
also  read  another  letter  from  Bache,  dated  the  14th  of  December, 
1852,  in  these  words:  "It  is  true  I  have  sold  Simpkins  the  piece  of 
land.  I  had  entirely  forgotten  that  I  had  given  you  the  privilege 
of  using  it.  I  regi'et  very  much  that  this  should  have  happened.  I 
assure  you  I  never  would  have  sold  it,  without  reserving  the  privi- 
lege I  had  granted  to  you.  If  he  should  refuse  to  let  you  have  the 
use  of  the  land,  I  should  consider  him  guilty  of  deception  towards 
me,  as  he  must  have  known  that  you  had  the  promise  of  the  use 
of  the  ground  by  your  breaking  it."  The  plaintiff  objected  to  the 
introduction  of  this  letter.  The  defendant  likewise  proved  that  he 
broke  the  land  in  June,  1852,  for  the  purpose  of  planting  it  in  osage 
orange  the  spring  following;  and  that  this  was  kno\\Ti  to  the  plaintiff 
■at  the  time.  On  this  evidence,  the  court  found  the  issue  for  the  de- 
fendant, and  rendered  judgment  in  his  favor. 

The  second  letter  of  Bache  was  clearly  inadmissible.  He  had 
previously'  parted  with  all  interest  in  the  land;  and  he  could  not 
by  any  subsequent  statements  disparage  the  title  of  the  plaintiff. 
The  declarations  of  a  grantor,  made  after  the  grant,  are  not  receiv- 
able in  evidence  to  prejudice  the  rights  of  the  grantee. 

If  the  first  letter  from  Bache  and  the  breaking  of  the  land  by 
Rogers  could  together  be  construed  as  creating  a  tenancy,  it  mani- 
festly was  but  a  tenancy  at  will,  determinable  at  the  pleasure  of  the 


CHAP,  v.]  SIMPKINS    V.    ROGEES.  707 

lessor.  It  merel}^  authorized  Rogers  to  use  and  occupy  the  land  for 
the  time  being.  It  gave  him  no  right  to  retain  the  possession  for 
any  certain  time.  Bache  held  the  land  for  sale,  and  he  was  not  dis- 
posed to  make  a  lease  that  might  interfere  with  that  purpose.  "While 
he  continued  to  be  the  owner,  he  was  willing  that  Rogers  should  en- 
joy the  land  without  charge.  But  he  reserved  the  right  to  determine 
the  tenancy  at  pleasure;  and  Rogers  entered  upon  the  land,  subject 
to  this  right  of  the  owner.  It  was  competent  for  Bache,  or  his  gi-an- 
tee,  to  put  an  end  to  the  tenancy  and  regain  the  possession,  upon 
giving  reasonable  notice  to  Rogers.  Where  a  tenancy  at  will  is  de- 
termined by  the  lessor,  the  tenant  is  entitled  to  the  emblements, 
and  to  a  reasonable  time  for  the  removal  of  his  family  and  property, 
with  free  ingress  and  egTess  for  the  exercise  of  these  rights.  Beyond 
this,  he  can  assert  no  rights  under  the  lease.  4  Kent's  Com.  110; 
Ellis  V.  Paige,  1  Pick.  43;  Davis  v.  Thompsoji,  13  ]\Iaine,  209;  Love 
V.  Edmonston,  1  Ired.  152.  In  this  case,  the  plaintiff  became  the 
owner  of  the  land,  and  notified  Rogers  not  to  occupy  or  cultivate  the 
same,  before  anything  was  done  under  the  lease  except  the  breaking. 
He  thus  determined  the  tenancy,  and  entitled  himself  to  immediate 
possession  of  the  land.  As  Rogers  neither  resided  on  the  land,  nor 
had  any  crops  growing  thereon,  it  was  his  duty  to  surrender  the 
possession  at  once,  and  leave  the  plaintiff  in  the  exclusive  enjoy- 
ment of  his  property.  The  crops  were  raised  by  Rogers  in  his  own 
WTong,  and  he  had  no  right  to  remove  them  from  the  land. 

We  are,  however,  not  incHned  to  hold  that  there  was  any  tenancy 
in  the  case.  One  of  the  essential  qualities  of  a  lease  was  wanting, 
the  reservation  of  rent  to  the  owner.  We  regard  the  transaction  as 
a  mere  permission  by  Bache  to  Rogers  to  enter  upon  and  occupy 
the  land.  While  this  license  remained  in  force,  it  was  a  sufficient 
authority  to  Rogers  to  use  and  enjoy  the  land.  But  it  was  revocable 
at  the  will  of  Bache  or  his  gi-antee.  It  was  revoked  by  the  plaintiff, 
and  from  that  time  Rogers  ceased  to  have  any  right  or  interest  in 
the  land.  It  might  well  l^e,  if  Rogers  had  crops  growing  on  the  land, 
that  the  license  could  not  be  revoked  until  the  same  were  matured 
and  harvested.  But  the  permission  was  withdrawn  before  the  sow- 
ing of  the  land.  The  law  upon  this  branch  of  the  case  was  fully 
discussed  in  Woodward  v.  Seeley,  11  111.  157. 

On  the  evidence,  the  plaintiff  was  clearly  entitled  to  recover.  The 
crops  in  question  were  his  property,  and  trover  was  maintainable 
for  them.  Mooers  v.  Wait,  3  Wend.  104;  Sallade  v.  James,  6  Barr, 
144;  Crotty  v.  Collins,  13  111.  5G7;  Farrant  v.  Thofnpson,  5  Barn.  & 
Aid.  826. 

The  judgment  is  reversed,  and  the  cause  remanded. 

Note.  —  In  Price  v.  Pickett,  21  Ala.  741,  the  court  said  (p.  743): 
"  In  relation  to  emblements,  the  right  of  the  tenant  was  unauestion- 


708  WHITMARSH    V.    CUTTING.  [cHAP.  V. 

ably  conferred  for  the  encouragement  of  agi'iculture:  but  this  right 
has  never  been  held  to  obtain  until  the  seed  is  sown,  and  the  common 
law  has  drawn  a  distinction  between  the  right  to  emblements  and 
the  costs  of  the  preparation  of  the  ground  for  the  reception  of  the 
seed ;  as  where  the  tenant  at  will  is  ousted  after  ploughing  and  ma- 
nuring the  land,  he  wholly  loses  his  costs  and  labor,  although  if  he 
had  planted  he  would  have  been  entitled  to  the  emblements.  Bro. 
Ab.  Title,  Emblements,  7.  If,  therefore,  the  term  of  the  lessee  was 
determined  by  the  death  of  the  tenant  for  life,  he  would  only  be 
entitled  to  the  emblements  of  the  land  then  seeded.  Thompson  v. 
Thompson,  6  Mun.  518." 

Harris  v.  Frink,  49  N.Y.  24.  B  entered  upon  the  land  of  A,  under 
an  unenforcible  contract  of  sale,  and  sowed  the  land.  A  expelled 
him  from  the  land.  B  was  held  entitled  to  the  crop. 


WHITMARSH  v.  CUTTING. 

10  Johns.  (N.Y.)  360.     1813. 

In  error,  on  certiorari,  from  a  justice's  court.  Whitmarsh  brought 
an  action  of  trespass  quare  clausum  /regit  against  Cutting,  for  enter- 
ing his  close  and  carrying  away  a  quantity  of  wheat  and  rye.  The 
defendant  pleaded  not  guilty;  and  there  was  a  trial  by  jury.  The 
plaintiff  proved  that,  in  August,  1812,  the  defendant  entered  his 
close  and  took  and  carried  away  the  wheat,  etc. 

The  defendant  then  proved  that  the  v/heat  and  rye  had  been  levied 
upon  by  a  constable,  on  an  execution  against  one  Hilton,  and  that 
the  defendant  assisted  the  constable  in  carrying  the  grain  away. 
The  defendant  offered  Hilton  as  a  witness  to  prove  that  the  grain 
belonged  to  Hilton,  who  was  objected  to,  as  interested,  but  admitted 
by  the  justice.  Hilton  testified  that  he  entered  on  the  premises  in 
April,  1810,  under  a  lease  from  the  owner  of  the  land,  for  one  year 
from  the  20th  April,  1810;  and  on  the  10th  June,  1810,  the  owner, 
by  endorsement  on  the  lease,  agreed  to  let  Hilton  have  the  farm 
for  another  year;  it  was  admitted  that  the  plaintiff  was  lessee  of 
the  owner,  and  that  in  May,  1812,  Hilton  was  ousted  under  the  act 
against  forcible  entry  and  detainer.  The  grain  w^as  sown  by  Hilton, 
but  reaped  and  gathered  by  the  plaintiff,  after  his  entry  in  May, 
1812. 

The  question  submitted  to  the  jury  was,  whether  he  was  entitled 
to  the  grain  as  emblements.  The  jury  found  a  verdict  for  the  de- 
fendant. 

Per  Curiam.  The  verdict  was  clearly  against  law.  The  crop 
sown  did  not  belong  to  Hilton,  but  to  his  successor.  This  lease  was 
for  a  year  certain,  and  then  renewed  for  the  next  year;  and  it  was  his 


CHAP,  v.]  STULTZ    V.    DICKEY.  709 

folly  to  sow  when  he  knew  that  his  term  would  expire  before  he  could 
reap.  The  doctrine  of  emblements  is  founded  entirely  on  the  uncer- 
tainty of  the  termination  of  the  tenant's  estate.  Where  that  is  cer- 
tain there  exists  no  title  to  emblements.  Without  touching  any 
other  points,  we  are  of  opinion  that  the  verdict  was  against  law  and 
evidence,  and  that  the  judgment  below  must  be  reversed. 


STULTZ  V.  DICKEY. 

5  Binn.  (Pa.)  285.     1812. 

Yeates,  J.  The  present  appeal  naturally  divides  itself  into  three 
questions :  — 

1.  Is  a  tenant  for  a  term  certain  entitled  to  his  way-going  crop, 
without  special  provision  for  that  purpose  in  his  lease?  .  .  . 

I  take  the  first  question  to  have  been  fully  put  to  rest  by  the  deci- 
sion of  the  court  at  Lancaster  Nisi  Prius  in  June,  1782,  between 
Michael  Diffedorffer  and  others,  plaintiffs,  and  John  Jones,  defend- 
ant. There  the  agents  of  forfeited  estates  had  leased  to  the  defend- 
ant the  lands  of  Michael  Whitman,  an  attainted  traitor,  for  one  year 
from  May,  1778,  till  May,  1779,  at  a  certain  rent,  and  the  lease  was 
continued  for  a  second  year  ending  the  1st  of  May,  1780.  The  agents, 
under  the  order  of  the  Supreme  Executive  Council,  sold  the  lands 
to  the  plaintiffs  in  August,  1779,  and  for  the  wheat  and  rye  put  in 
during  the  fall  of  that  year,  and  reaped  in  the  following  year,  the 
replevin  was  brought.  Several  witnesses,  including  two  of  the  jurors, 
were  examined  as  to  the  custom  of  the  country,  that  tenants  for 
years  who  did  not  receive  crops  at  the  commencement  of  their  leases, 
were  entitled  to  take  off  the  crops  which  had  been  sown  during  the 
continuance  of  their  leases.  The  court  were  clearly  of  opinion  that 
the  defendant  was  entitled  to  the  crop,  which  he  had  put  in  during 
his  lea,se,  and  the  jury  found  accordingly.  Though  I  was  dissatisfied 
with  the  opinion  then  delivered,  I  have  never  heard  the  doctrine 
questioned  since.  I  have  adverted  to  this  case  in  Carson  v.  Blazer 
et  at.,  reported  in  2  Binn.  487.  Such  custom  is  said  in  our  books  not 
to  alter  or  contradict  the  agi'eement  in  the  lease,  but  only  to  super- 
add a  right,  which  is  consequential  to  the  taking,  although  not  men- 
tioned therein.  There  can  be  no  doubt  if  the  tenant  was  restricted, 
by  the  terms  of  his  lease,  from  removing  the  grain  after  his  time  was 
expired,  that  he  would  be  bound  by  his  contract;  and  I  apprehend 
the  privilege  of  the  tenant  in  general  is  confined  to  a  reasonable 
quantity  of  the  lands,  in  proportion  to  the  residue  thereof,  according 
to  the  course  and  usage  of  husbandry  in  the  same  parts  of  the  coun- 
try. The  privilege  is  founded  on  the  highest  equity,  and  conduces 
to  the  extension  of  agriculture. 


710  SANDERS  V.    CHANDLER.  [CHAP.  V. 

SANDERS  V.  CHANDLER. 

26  Minn.  273.     1879. 

GiLFiLLAN,  C.J.  Action  for  taking  and  converting  a  quantity  ol 
wheat.  The  defendant  justified,  as  sheriff  of  the  county  of  Goodhue, 
under  an  execution  issued  upon  a  judgment  against  James  Sanders, 
who  is  plaintiff's  husband.  On  the  trial  the  plaintiff  introduced  evi- 
dence that  the  wheat  taken  was  hers,  and  was  raised  on  a  farm  man- 
aged by  her,  which,  in  1868,  was  conveyed  by  one  Nugent  to  said 
James  Sanders,  and,  in  1871,  by  James  Sanders  and  plaintiff  to  one 
Ward,  and  by  Ward  the  next  day  to  plaintiff. 

The  defendant  introduced  the  judgment  and  execution  under 
which  he  justified,  and  other  evidence  not  of  itself  tending  to  dis- 
prove plaintiff's  title,  nor  to  disprove  that  she  managed  and  con- 
trolled the  farm,  and  then  offered  to  show  that  the  conveyance  from 
Ward  to  her,  in  1871,  was  made  without  any  consideration,  and  for 
the  purpose  of  hindering,  delaying  and  defrauding  the  creditors  of 
James  Sanders,  plaintiff's  husband,  and  for  the  purpose  of  hindering, 
delajdng  and  preventing  the  collection  of  the  debts  of  James  Sanders 
then  existing,  and  those  to  be  contracted  by  him  in  the  future.  This 
was  objected  to  as  incompetent  and  immaterial,  and  excluded.  The 
judgment  under  which  the  defendant  justifies  was  rendered  five  and 
a  half  years  after  the  conveyance,  upon  an  indebtedness  incurred 
more  than  four  years  after,  and  it  does  not  appear,  nor  was  there  any 
offer  to  prove,  that  at  the  date  of  the  conveyance  the  plaintiff  in  the 
judgment  was  a  creditor  of  James  Sanders.  The  defendant  thereupon 
rested  his  case.  The  court  then,  upon  plaintiff's  motion,  withdrew 
from  the  consideration  of  the  jury  the  execution  introduced  by 
defendant,  and,  both  parties  having  rested,  instructed  the  jury  to 
render  a  verdict  for  plaintiff  for  the  value  of  the  wheat  taken,  which 
the  jury  did. 

It  may  be  doubted  if  the  reason  given  by  the  court  below,  on  the 
trial,  for  withdrawing  the  execution  introduced  by  defendant  from 
the  consideration  of  the  jury,  was  correct;  but  its  action  was  correct, 
for,  as  the  evidence  stood,  there  was  nothing  from  which  the  jury 
could  have  found  that  the  wheat  was  not  the  property  of  the  plain- 
tiff, and,  therefore,  the  execution  could  have  no  effect  in  the  case; 
and  for  the  same  reason  the  instruction  to  the  jury  to  render  a  ver- 
dict for  plaintiff  was  correct. 

The  evidence  offered  by  defendant,  and  excluded,  as  to  fraudu- 
lent intent  in  the  transfer  of  the  farm  to  plaintiff,  in  1871,  would  not, 
if  admitted,  with  all  the  other  evidence  in  the  case,  have  shown  that 
plaintiff  did  not  own  the  wheat,  nor  justified  the  jury  in  so  finding. 
The  validity  of  that  transfer  as  against  creditors  was  not  directly  in 


CHAP,  v.]  STOCKWELL    V.    PHELPS.  711 

issue,  nor  was  the  creditor  in  the  judgment  under  which  defendant 
justified  in  position  to  impeach  the  transfer,  unless  for  an  incidental 
purpose;  for  he  was  not  a  creditor  at  the  time  of  the  transfer;  nor 
does  the  offer  include  evidence  of  a  scheme  by  which  he  was  to  be 
induced  to  give  credit  to  James  Sanders,  and  to  be  prevented,  by 
such  transfer,  from  collecting  his  debt  to  be  so  incurred. 

It  is  unnecessary  to  determine  whether,  if  the  evidence  already 
introduced  tended  to  show  that  James  Sanders  was  in  possession  of 
the  wheat,  or  that  he  managed  and  controlled  the  farm,  or  received 
or  enjoyed  the  proceeds,  the  evidence  offered  would  have  been  proper, 
in  corroboration  or  explanation  of  such  evidence,  to  characterize,  as  it 
were,  the  acts  of  the  parties  in  reference  to  this  wheat,  the  property 
directly  in  question.  For  the  evidence  is  uncontradicted  that  plain- 
tiff, from  the  time  of  the  transfer  to  her,  managed  and  controlled  the 
farm  and  the  crops  from  it  for  her  own  use  and  benefit,  as  she  had  a 
right  to  do,  under  her  title  to  the  farm,  and  while  it  remained  in  her. 
The  fact  that  the  farm  was  transferred  to  her  with  intent  to  defraud 
the  grantor's  creditors  would  not,  of  itself,  defeat  her  right  to  the 
crops  raised  by  her  upon  the  farm.  The  court  was,  therefore,  right  in 
excluding  evidence  of  the  fact. 

Order  affirmed. 


STOCKWELL  v.  PHELPS. 

34  N.Y.  363.     1866. 

Wright,  J.  The  land  from  which  the  hay  in  controversy  was  cut, 
was,  at  the  time  of  the  cutting,  in  the  actual  possession  of  one  Owen 
Wild,  he  claiming  the  premises  as  his  own,  and  holding  them  ad- 
versely to  the  plaintiffs,  who  had  the  title  in  fee.  While  thus  in  actual 
possession,  holding  adverse  to  the  plaintiffs.  Wild  sold  and  delivered 
the  hay  to  the  defendant,  whereupon  the  plaintiffs  brought  replevin 
for  the  same.  The  referee  held  that  the  plaintiffs  could  not  recover 
for  the  hay,  and  gave  judgment  for  the  defendant. 

The  judgment  was  right.  Wild,  when  the  action  was  commenced, 
was  in  the  actual  possession  of  the  premises  from  which  the  hay 
in  question  was  cut,  claiming  them  as  his  own,  adversely  to  the 
plaintiffs;  and  whatever  right  the  plaintiffs  might  have  had  to  main- 
tain an  action  after  obtaining  possession  of  the  premises,  it  is  clear 
they  had  no  right  of  a  otion  whatever  when  this  one  was  commenced. 
Replevin,  or  an  action  in  the  nature  of  replevin,  in  the  cepit,  can  only 
be  brought  when  trespass  could  be  maintained,  and  that  will  onlj^  lie 
for  an  injury  to  land  when  the  plaintiff  is  in  possession  (Br.ets  v. 
Bahn,  3  Denio,  79;  De  Mott  v.  Hagerman,  8  Cow.  220);  and  Wild, 
being  in  the  actual  possession  of  the  premises,  claiming  them  as  his 


712  THOMES    V.    MOODY.  [CHAP.  V. 

own,  is  regarded  as  the  owTier  as  to  all  the  world  until  after  a  judicial 
decision.  The  remedy  of  the  plaintiffs  was  a  judgment  against  Wild 
for  mesne  profits  in  an  action  of  ejectment,  or  by  action  of  trespass 
after  having  got  possession  of  the  land. 


THOMES  V.  MOODY. 

11  Me.  139.     1834. 

Mellen,  C.J.  On  the  14th  of  May,  1832,  the  defendant,  one  of  the 
sons  of  the  late  Edmund  Moody,  was  peaceably  occupying  and  pos- 
sessing the  farm  and  dwelling  house  thereon  standing,  of  which  his 
father  died  seized,  and  on  that  day,  he  was  in  a  forcible  and  unlawful 
manner  turned  out  of  possession  of  the  same  by  the  plaintiff,  Samuel 
Moody,  and  some  others;  and,  with  force  and  a  strong  hand,  he  was 
kept  out  of  possession  until  the  28th  of  February,  1833,  at  which  time 
he  was  restored  to  and  regained  the  possession.  It  is  not  pretended 
that  the  plaintiff  has,  or  ever  had  any  title  to  the  said  farm;  he  was, 
during  the  period  of  his  unlawful  possession,  merely  the  lessee  of 
William  Thomes;  and  he  had  no  other  title  than  under  a  deed  from 
the  above-named  Samuel  Moody,  who,  at  the  time  of  making  the 
deed,  had  neither  a  title  to  the  farm  nor  even  possession.  The  hay 
and  wheat,  for  which  the  present  action  of  trover  is  brought,  grew  on 
the  farm  during  the  tortious  and  unlawful  possession  of  it  by  the 
plaintiff,  and  the  defendant,  when  he  regained  possession,  found  the 
above  property  there  and  appropriated  the  same  to  his  own  use. 
Can  the  plaintiff  maintain  this  action? 

The  act  of  the  plaintiff  and  his  associates  in  turning  the  defendant 
out  of  possession  was  a  trespass,  for  which  he  could  at  once  have 
maintained  an  action  of  trespass  against  all  concerned,  or  any  of 
them.  But  the  plaintiff's  counsel  says,  that  the  above  act  of  dispos- 
session and  exclusion  amounted  to  a  disseizin.  If  we  so  consider  the 
conduct  of  the  plaintiff,  will  it  aid  him  in  this  action?  It  is  a  well- 
settled  principle  of  law,  that  if  a  disseizee,  ha\'ing  a  right  of  entry, 
enters,  he  may  afterwards  have  trespass  against  the  disseizor,  with  a 
continuando  for  the  whole  time  of  his  possession.  Co.  Lit.  257,  a; 
2  Roll.  550;  5  Comyn's  Digest,  Trespass,  B  2;  Cox  v.  Callender,  9 
Mass.  533. 

In  the  present  case,  the  defendant  was  restored  to  his  possession  of 
the  premises,  in  about  nine  months  after  his  expulsion ;  and  the  man- 
ner of  his  restoration  did  not  give  him  less  perfect  rights  than  he 
would  have  acquired  by  a  lawful  entry  in  the  usual  form;  he,  there- 
fore, on  regaining  his  possession,  had  a  legal  right  to  recover  damages 
against  the  plaintiff,  for  all  injuries  done  to  him  by  such  violence, 
trespass  and  exclusion.  This  being  undisputed  law,  on  what  ground 


CBL'VP.  v.]  PAGE    V.    FOTVXER.  713 

can  this  wrongdoer  be  permitted  to  recover  the  fruits  of  his  wrong, 
against  him  whom  he  has  wronged,  who  is  also  an  owner  in  fee  of 
the  land  which  produced  the  hay  and  wheat  in  question? 

This  view  of  the  case  seems  to  do  away  with  the  distinction,  made 
bj^  the  plaintiff's  counsel,  between  this  and  the  case  of  Higginson  et  al. 
V.  York,  5  Mass.  341;  as  the  court  said,  in  the  case  of  Cox  et  al. 
V.  Callender,  "the  entry  of  the  disseizee,  when  he  has  a  right  of 
entry,  changes  the  disseizin  into  a  trespass;"  and  so,  according  to 
Higginson  et  al.  v.  York,  the  plaintiff,  by  his  wrongful  acts,  acquired 
no  property  in  the  product  of  his  labor,  as  against  the  owner  of  the 
land;  although  he  might  maintain  an  action  of  trespass  or  trover 
against  a  stranger,  for  the  taking  or  appropriating  such  property 
without  his  consent. 

The  verdict  must  be  set  aside  and  a  nonsuit  entered. 

Note.  —  See  McGinnis  v.  Fernandes,  135  111.  69;  Hooser  v.  Hays, 
10  B.  Mon.  (Ky.)  72;  Stebbins  v.  Demorest,  138  Mich.  297. 


PAGE  V.  FOWLER. 

39  Cal.  412.     1870. 

Temple,  J.  The  plaintiff  was  in  possession  of  about  eight  hundred 
acres  of  land,  which  had  been  inclosed  for  many  years,  and  which  he 
claimed  to  own  under  the  so-called  Suscol  grant.  In  the  summer  of 
1862,  while  crops  put  in  by  plaintiff  were  still  growing  upon  the  land, 
the  defendants  entered,  claiming  one  hundred  and  sixty  acres  of  land 
each,  as  pre-emptioners.  They  built  small  houses  upon  their  respec- 
tive claims,  where  they  afterwards  lived.  They  each  possessed  the 
requisite  qualifications  to  become  pre-emptioners,  and  each  took  the 
necessary  steps  to  enter  the  lands  in  the  proper  land  office  of  the 
United  States.  They  were  unsuccessful,  however,  in  their  attempts 
to  pre-empt,  and  the  plaintiff  finally  recovered  a  judgment  against 
them  for  the  land.  In  May,  1863,  while  they  were  in  possession,  and 
before  the  judgment  in  ejectment,  they  cut  a  quantity  of  hay  upon 
the  land,  which  was  taken  by  the  plaintiff  by  the  writ  of  replevin  in 
this  suit. 

There  is  no  question  that,  at  the  time  this  action  was  commenced, 
the  rights  of  the  parties,  with  reference  to  the  property  in  contro- 
versy, are  exactly  the  same  as  in  the  former  case  of  Page  v.  Fowlei'; 
but  before  this  case  was  actually  tried,  plaintiff  had  recovered  a  judg- 
ment of  ejectment  against  the  defendants,  and,  as  he  claims,  had  been 
put  into  possession,  and  he  now  claims  that  the  rule  laid  down  in  the 
former  case  cannot  apply  to  this;  that  the  reason  why  the  plaintiff, 
out  of  possession,  cannot  recover  against  the  defendant  in  the  ad- 


714  PAGE    V.    FOWLER.  [CHAP.  V. 

verse  possession,  claiming  to  be  the  owner,  is  because  the  personal 
action  cannot  be  made  the  means  of  trying  title;  but  that  he  may, 
under  our  system,  by  means  of  the  sixty-fourth  section  of  the  Prac- 
tice Act,  commence  his  action  for  possession,  and  also  separate  ac- 
tions for  rents  and  profits,  and  for  trespass  or  waste;  and  if,  at  the 
trial  of  his  action  of  trespass  or  waste,  he  shows  his  judgment  for  the 
recovery  of  the  land,  it  will  be  evidence  of  his  right  to  recover  for  the 
trespass  or  waste,  and  that,  upon  the  same  principle,  the  plaintiff  is 
entitled  to  recover  in  this  case.  I  know  of  no  warrant  for  this  con- 
struction of  the  sixty-fourth  section  of  the  Practice  Act;  but,  inde- 
pendently of  that,  I  think  the  proposition  not  maintainable  upon 
principle. 

It  is  undoubtedly  true,  that,  at  common  law,  a  person  who  had 
been  ousted  from  land  might,  after  a  recovery  and  re-entry,  maintain 
his  action  of  trespass  for  the  mesne  profits  and  for  waste,  for  the  rea- 
son that  after  re-entry  the  law  supposes  he  has  always  been  seized 
and  the  acts  of  the  defendant  were  a  continuous  trespass  upon  the 
rightful  possession  of  the  plaintiff;  but  no  case  has  been  cited  in  which 
this  principle  has  been  held  to  make  the  owner  of  the  land  out  of 
possession,  under  such  circumstances,  the  owner  of  the  crops  growTi 
and  actually  harvested  by  the  defendant.  The  very  fact  that  he  may 
recover  the  rents  and  profits  of  the  land  shows  that  he  camiot  re- 
cover the  crops;  for,  as  was  well  said  in  the  case  of  Stockivell  v. 
Phelps,  34  N.Y.  363,  the  owner  of  the  land,  in  such  cases,  does  not 
recover  the  value  of  the  crops  raised  and  harvested,  but  the  value  of 
the  use  and  occupation  of  the  land;  and  the  annual  crops  of  grain 
and  grass,  which  contain  both  the  value  of  the  use  of  the  land  and  the 
labor  of  the  farmer,  do  not,  under  such  circumstances,  belong  to  the 
owner  of  the  land.  It  would  be  an  oppressive  rule  to  require  every  one 
who,  after  years  of  litigation  perhaps,  may  be  found  to  have  a  bad 
title,  to  pay  the  gi'oss  value  of  all  the  crops  he  has  raised;  and  it 
would  be  an  inconvenience  to  the  public  if  the  bad  title  of  the  farmer 
to  his  land  attached  to  the  crops  he  offered  for  sale,  and  rendered  it 
necessary  to  have  an  abstract  of  his  title  to  make  it  safe  to  purchase 
his  produce. 

Note.  —  See,  accord,  Johnston  v.  Fish,  105  Cal.  420;  Lindsay  v. 
Winona  R.R.  Co.,  29  Minn.  411;  Jenkins  v.  AlcCoy,  50  Mo.  348; 
Faulcon  v.  Johnston,  102  N.C.  264;  Phillips  v.  Keysaw,  7  Okl.  674; 
Churchill  v.  Ackertnan,  22  Wash.  227. 


CHAP.  VI.]  MAESHALL    V.    MELLON  715 


CHAPTER  VI. 
WASTE. 


MARSHALL  v.   MELLON. 

179  Pa.  371.     1897. 

Assumpsit  for  accrued  rent  upon  an  oil  and  gas  lease.  Before 
Stowe,  P.J. 

At  the  trial  it  appeared  that  on  the  death  of  her  husband  the  plain- 
tiff became  vested  with  a  life  estate  in  the  land  covered  by  the  lease, 
and  that  it  had  never  been  operated  for  oil  or  gas.  On  February  17, 
1885,  plaintiff  executed  a  lease  of  the  land  to  W.  A.  Mellon  for  the 
sole  purpose  of  mining  for  oil  and  gas.  The  lease  was  for  the  full  term 
of  plaintiff's  life,  and  was  subsequently  assigned  to  defendants.  No 
actual  possession  of  the  premises  was  taken  by  the  lessee  or  his  as- 
signees, nor  was  any  attempt  made  to  operate  the  land,  nor  was  any 
pajTnent  of  rentals  made. 

Verdict  for  plaintiff  subject  to  the  question  of  law  reserved  as  to 
whether  the  plaintiff  was  entitled  to  recover  under  all  the  evidence 
in  the  case.  Judgment  was  entered  for  defendants  non  obstante 
veredicto. 

Opinion  by  Mr.  Justice  Green,  January  4,  1897: 

In  Stoughton's  Appeal,  88  Pa.  198,  we  said:  "Oil,  however,  is  a 
mineral,  and  being  a  mineral  is  part  of  the  realty.  Fu7ik  v.  Halde- 
man,  53  Pa.  229.  In  this  it  is  like  coal  or  any  other  mineral  product 
which  in  situ  forms  part  of  the  land."  In  Gill  v.  Weston,  110  Pa.  312, 
we  said  of  petroleum,  "It  is  a  mineral  substance  obtained  from  the 
earth  by  a  process  of  mining,  and  lands  from  which  it  is  obtained  may 
with  propriety  l)e  called  mining  lands."  In  Westmoreland  Nat.  Gas 
Co.  V.  De  Witt,  130  Pa.  235,  we  said,  "Gas  it  is  true  is  a  mineral,  but 
it  is  a  mineral  with  peculiar  attributes."  In  Blakley  v.  Marshall,  174 
Pa.  425,  a  lease  for  oil  and  gas  puq^oses  was  made  by  lessors  who  were 
tenants  for  life  and  also  as  trustee  for  those  in  remainder.  The  leased 
premises  proved  to  be  productive.  A  question  arose  upon  a  case 
stated  as  to  the  interests  respectively  of  the  life  tenants  and  those  in 
remainder.  The  life  tenants  claimed  the  whole  of  the  oil,  and  for 
those  in  remainder  the  same  claim  was  made.  The  court  })elow  ap- 
pointed a  trustee  to  receive  all  the  oil  due  to  the  lessors,  and  to  invest 
the  proceeds,  and  pay  the  interest  annually  realized  therefrom  to  the 


716  MAESHALL    V.    MELLON.  [cHAP.  VI. 

life  tenants  during  their  joint  lives  and  the  life  of  the  survivor,  and 
at  the  death  of  the  latter  to  pay  the  principal  to  the  remainder-men. 
This  court  sustained  the  court  below  and  said,  *'As  was  said  in 
Stoughton's  Appeal,  88  Pa.  198,  and  other  cases  in  the  same  line,  oil  in 
place  is  a  mineral,  and  being  a  mineral  is  part  of  the  realty.  An  oil 
lease  investing  the  lessee  with  the  right  to  remove  all  the  oil  in  place 
in  the  premises,  in  consideration  of  his  giving  the  lessors  a  certain 
per  centum  thereof,  is  in  legal  effect  a  sale  of  a  portion  of  the  land, 
and  the  proceeds  represent  the  respective  interests  of  the  lessors  in 
the  premises.  If  there  be  life  tenants  and  remainder-men  the  former 
are  entitled  to  the  enjoyment  of  the  fund  (interest  thereon)  during 
life,  and  at  the  death  of  the  survivor  the  corpus  of  the  fund  should  go 
to  the  remainder-men."  This  distribution  was  made  because  all  the 
interests  concurred  in  making  the  lease,  and  it  was  to  the  manifest 
interest  of  all  that  the  oil  should  be  taken  from  the  land,  lest  it  should 
be  drawn  away  by  other  wells  on  adjacent  premises.  In  that  respect 
of  course  there  is  a  difference  between  oil  and  gas  and  solid  minerals, 
but  in  respect  of  the  interests  of  life  tenants  as  contrasted  with  those 
in  remainder  there  was  no  departure  from  the  common  law  rule  that 
tenants  for  life  only  may  not  open  new  mines  or  take  minerals  from 
the  premises,  except  in  case  of  mines  opened  by  the  former  owner. 
This  was  recognized  in  Westmoreland  Co.'s  Appeal,  85  Pa.  344,  where 
we  held  that  while  the  life  tenant's  right  to  work  previously  opened 
mines  was  undoubted,  there  was  no  right  in  a  life  tenant  of  several 
tracts  to  open  a  new  mine  on  one  of  the  tracts  upon  which  no  pre- 
vious opening  had  taken  place.  Mercur,  J.,  said,  in  the  opinion, 
''neither  tract  is  appendant  or  appurtenant  to  the  other.  If  she  had  a 
life  estate  in  the  distant  tract  only,  the  fallacy  of  claiming  a  right  to 
remove  the  coal  therefrom  would  be  most  manifest.  The  unanswer- 
able reason  would  be  that  the  mine  on  that  tract  had  never  been 
opened." 

We  see  no  difference  between  the  present  case  and  those  cited,  so 
far  as  this  question  is  concerned.  The  plaintiff  was  but  a  tenant  for 
life  of  the  premises  in  question.  There  had  never  been  any  oil  or  gas 
operations  commenced  on  the  land  before  her  estate  for  life  accrued. 
She  had  no  right,  therefore,  to  operate  for  oil  or  gas  herself,  and 
she  could  not  give  such  a  right  to  any  lessee  from  her.  Neither 
the  original  lessee  nor  the  defendants,  his  assignees,  ever  held  any 
such  right.  They  would  have  been  trespassers  if  they  had  under- 
taken to  exercise  such  a  right.  The  lease  was  "for  the  sole  and  only 
purpose  of  drilling  and  operating  for  petroleum,  oil  or  gas,"  and  "to 
have  and  to  hold  the  said  premises  for  the  said  purpose  only."  All 
the  terms  and  conditions  of  the  lease  relate  to  that  purpose  alone, 
and  no  right  to  the  use  of  the  surface  for  any  other  purpose  is  con- 
ferred. It  is  manifest,  therefore,  that  as  no  interest  whatever  was 
acquired  under  the  lease,  the  lessees  are  under  no  obligation  to  pay 


CHAP.  VI.]      GAINES  V.    GREEN  POND  MINING  CO.  717 

for  a  right  or  privilege  which  they  never  obtained,  or  in  damages  for 
not  performing  an  illegal  covenant  therein.  We  think  the  judgment 
entered  by  the  com-t  below  was  entirely  right. 

It  seems  to  us,  however,  in  view  of  the  peculiar  character  of  oil  and 
gas  as  being  fugacious  in  their  natm-e,  and  liable  to  be  diverted  by 
operations  upon  other  adjoining  or  nearby  lands,  in  order  to  preserve 
the  interests  of  both  life  tenants  and  remainder-men,  it  would  be 
well* for  the  legislature  to  make  such  enactments  as  would  enable  the 
owners  of  this  class  of  lands  to  secure  to  themselves  the  benefits  of 
such  minerals  as  these.  As  it  is  now,  the  law  is  not  efficacious  to  that 
end. 

Judgment  affirmed. 

Note.  —  A  life  tenant  took  clay  from  the  soil  and  manufactured  it 
into  bricks.  This  was  held  to  be  waste.  University  v.  Tucker,  31 
W.Va.  621. 


GAINES   V.   GREEN   POND   MINING   CO. 

33  N.J.  Eq.  603.     1881. 

Van  Syckel,  J.  The  bill  in  this  cause  was  filed  by  the  complain- 
ants as  owners  of  the  remainder  in  fee  of  a  large  tract  of  wild  lands 
in  the  county  of  Morris,  to  restrain  the  defendants,  who,  it  is  alleged, 
have  only  a  life  estate  in  said  lands,  from  cutting  timber  and  work- 
ing the  iron  mines  on  said  premises,  and  also  praying  for  an  account. 

The  land  in  question  is  very  rough  and  mountainous,  and  almost 
all  of  it  unfit  for  cultivation.  On  it  there  is  a  thin  covering  of  wood 
and  timber,  with  a  large  deposit  of  valuable  iron  ore  underlying  it. 
About  the  year  1812.,  Dr.  Graham,  then  owner  of  the  fee,  excavated 
the  iron  ore  for  the  purpose  of  manufacturing  copperas,  sulphur 
being  combined  with  it  in  such  proportions  as  made  it  available  for 
that  pui-pose.  He  made  at  least  two  openings,  from  ten  to  fifteen 
feet  deep,  out  of  which  the  ore  was  raised,  and  carried  on  this  busi- 
ness for  several  years.  There  was  erected  upon  the  premises  a  build- 
ing used  for  pounding  the  ores,  and  other  apparatus  for  treating 
them.  There  was  no  digging  for  ore  from  the  time  Dr.  Graham  quit 
working  (about  1812  or  1814)  until  about  forty  years  ago,  when  a 
small  quantity  of  ore  was  taken  out  and  tested  at  two  different  forges 
in  the  neighborhood,  and  was  considered  to  be  without  value  as  iron 
ore,  on  account  of  the  sulphur  it  contained.  From  that  time  there 
has  been  no  mining  upon  these  premises  until  the  Green  Pond  Iron 
Company  commenced  its  operations  in  1872. 

By  the  strict  rule  of  the  common  law,  the  opening  and  working 
of  a  mine  by  a  tenant  for  years,  not  opened  in  the  lifetime  of  the 


718  GAINES  V.    GREEN  POND  MINING  CO.     [CHAP.  VI. 

previous  tenant  in  fee,  was,  equally  with  the  cutting  of  timber,  an 
undoubted  waste  of  the  estate.  In  Hohy  v.  Hoby,  1  Vern.  218,  the 
widow  was  held  to  be  dowable  of  a  coal  work.  It  was  resolved  in 
Saunders's  Case,  5  Coke  12,  that  "  if  a  man  hath  land  in  part  of  which 
there  is  a  coal  mine  open,  and  he  leases  the  land  to  one  for  life,  or 
for  years,  the  lessee  may  dig  in  it ;  for  inasmuch  as  the  mine  is  open 
at  the  time,  and  he  leases  all  the  land,  it  shall  be  intended  that  his 
intent  is  as  general  as  his  lease." 

The  tenant  for  life,  subject  to  waste,  caimot  open  a  new  mine. 
Whitfield  V.  Beuitt,  2  P.  Wms.  240. 

And  if  a  lease  of  land  be  made,  and  some  mines  are  open  and  some 
not,  the  open  mines  only  can  be  wrought.  Astry  v.  Ballard,  2  Lev. 
185. 

But  a  tenant  for  life  may  open  the  earth  in  new  places  in  pursuit 
of  an  old  vein  of  coals,  when  the  coal  mine  had  been  opened  before 
he  came  in  possession  of  the  estate.  Clavering  v.  Clavering,  2  P. 
Wms.  388. 

Stoughton  v.  Leigh,  1  Taunt.  402,  was  a  case  directed  out  of  the 
high  court  of  chancery  for  the  opinion  of  the  law  judges. 

The  case  involved  the  right  of  the  widow  to  dower  in  certain  mines 
on  an  estate  of  which  her  husband  had  died  seized.  The  mine  had 
been  opened  and  wrought,  but  had  ceased  to  be  worked  long  prior 
to  the  husband's  death.  The  question  was  whether  the  widow,  in  vir- 
tue of  her  estate  in  dower,  was  entitled  to  work  the  abandoned  mine 
for  her  own  benefit. 

The  judges  answered  that  the  widow  was  dowable  of  all  the  mines 
which  had  been  opened  and  worked  in  her  husband's  lifetime,  and 
"that  her  right  to  be  endowed  of  them  had  no  dependence  upon  the 
subsequent  continuance  or  discontinuance  of  working  them,  either 
by  the  husband,  in  his  lifetime,  or  by  those  claiming  under  him, 
since  his  death." 

In  Viner  v.  Vaughan,  2  Beav.  466,  Lord  Langdale  said:  "A  ten- 
ant for  life  has  no  right  to  take  the  substance  of  the  estate  by  opening 
mines  or  clay-pits;  but  he  has  a  right  to  continue  the  working  of  mines 
and  clay-pits  where  the  author  of  the  gift  has  previously  done  it, 
and  for  this  reason  that  the  author  of  the  gift  has  made  them  part 
of  the  profits  of  the  land." 

A  temporary  injunction  was  granted,  so  that  the  right  of  the  life 
tenant  to  work  the  clay-pits  might  be  passed  upon.  That  this  case 
did  not  receive  a  thorough  consideration  is  sho^^^l  by  the  fact  that 
Stoughton  v.  Leigh  was  not  referred  to. 

This  subject  was  carefully  considered  by  Lord  Romilly,  in  Bagot 
V.  Bagot,  32  Beav.  509,  where  he  says:  "With  respect  to  the  aban- 
doned, or,  as  they  are  called  in  the  pleadings  and  e^adence,  the  dor- 
mant mines,  I  am  of  opinion  that  it  has  not  been  shown  that  he 
committed  waste  in  working  those  mines.  It  is  always  a  question  of 


CHAP.  VI.]      GAINES  V.    GREEN  POND  MINING  CO.  719 

degree  to  be  established  by  evidence,  whether  the  working  of  a  mine 
which  has  been  formerly  worked,  is  waste  or  not.  There  is  no  doubt 
that  a  tenant  for  life,  though  impeachable  for  waste,  may  properly 
work  an  open  mine.  A  mine  not  worked  for  twelve  months,  or  two 
years,  previously  to  the  tenant  for  life  coming  into  possession,  must 
still  be  considered  an  open  mine.  A  mine  which  has  not  been  worked 
for  one  hundred  years  cannot,  I  think,  be  properly  so  treated.  My 
present  opinion  is,  that  a  mine  which  had  not  been  worked  for  twenty'' 
or  thirty  years,  from  the  loss  of  profit  attending  the  working,  might, 
without  committing  waste,  be  worked  again  by  a  succeeding  tenant 
for  life.  But,  if  the  w^orking  of  the  mine  had  been  abandoned  by  the 
owner  of  the  inheritance  many  years  previously,  with  a  view  to  some 
advantage  which  he  considered  would  accompany  such  discontinu- 
ance, apart  from  the  profits  to  be  made  from  the  sale  of  the  mineral,  I 
doubt  whether  a  succeeding  tenant  for  life  could  properly  treat  that 
as  an  open  mine." 

In  Elias  v.  Griffith,  L.  R.  (4  App.  Cas.)  465,  Lord  Selborne  saj^s; 
"Upon  the  questions  of  law  which  were  argued  at  the  bar,  I  think  it 
unnecessary  to  make  more  than  two  remarks.  The  first  is,  that  I  am 
not  at  present  prepared  to  hold  that  there  can  be  no  such  thing  as 
an  open  mine  or  quarry,  which  a  tenant  for  life,  or  other  owner  of  an 
estate  impeachable  for  waste,  may  work,  unless  the  produce  of 
such  mine  or  quarry  has  been  previously  carried  to  market  and  sold. 
No  doubt  if  a  mine  or  quarry  has  been  worked  for  commercial  profit, 
that  must,  ordinarily,  be  decisive  of  the  right  to  continue  working; 
and,  on  the  other  hand,  if  minerals  have  been  worked  or  used  for 
some  definite  and  restricted  purpose  (e".g.,  for  the  purpose  of  fuel 
or  repair  to  some  particular  tenements),  that  would  not  alone  give 
any  such  right.  But  if  there  has  been  a  working  and  use  of  minerals 
not  limited  to  any  special  or  restricted  purpose,  I  find  nothing  in 
the  older  authorities  to  justify  the  introduction  of  sale  as  a  necessary 
criterion  of  the  difference  between  a  mine  or  quarry  which  is,  and 
one  which  is  not,  to  be  considered  open  in  a  legal  sense.  None  of  the 
dicta  which  are  to  be  found  in  some  of  the  more  modern  cases  (each 
of  which  turned  upon  its  own  particular  circumstances)  can  have 
been  intended  to  introduce  a  condition  or  qualification  not  previ- 
ously known,  into  the  law  of  mines. 

"The  other  observation  which  I  desire  to  make  is,  that  when  a 
mine  or  quarr>'  is  once  open,  so  that  the  owner  of  an  estate  impeach- 
able for  waste  may  work  it,  I  do  not  consider  that  the  sinking  a  new 
pit  on  the  same  vein,  or  breaking  ground  in  a  new  place  on  the  same 
rock,  is  necessarily  the  opening  of  a  new  mine  or  quarry;  and  for 
this,  authority  is  to  be  found  in  the  cases  which  were  cited  at  the 
bar,  of  Clavering  v.  Clavering,  Bagot  v.  Bagot,  and  Lord  Cowley  v. 
Wellesley." 

In  Elias  v.  Griffith,  L.  R.  (8  Ch.  Div.)  521,  Lord  Cotton  remarked 


720  GAINES    V.    GREEN    POND    MINING    CO.  [CHAP.  VI. 

that  "To  enable  a  termor,  or  tenant  for  life  punishable  for  waste, 
to  work  mines,  it  must  be  shown  that  the  owner  of  the  inheritance, 
or  those  acting  by  his  authority,  have  commenced  the  working  of 
the  mines  with  a  view  to  making  a  profit  from  the  working  and  sale 
of  what  is  part  of  the  inheritance.  When  this  is  established,  though 
no  profit  has  in  fact  been  made,  the  mine  is  open  in  such  a  sense  as 
to  justify  the  continuance  of  the  working  by  a  termor." 

The  case  of  Clavering  v.  Clavering,  2  P.  Wms.  388,  which  recog- 
nizes the  right  of  the  life  tenant  to  open  new  pits  or  shafts,  for  the 
working  of  an  old  vein  of  coal,  has  never  been  overruled  in  the  Eng- 
lish courts. 

These  citations  show  that,  in  England,  the  life  tenant  has  a  right 
to  use  a  mine  for  his  own  profit,  where  the  owner  of  the  fee  in  his  life- 
time has  opened  it,  even  though  he  may  have  discontinued  working 
upon  it  for  a  long  period  of  years. 

The  rule  by  which  the  right  of  the  life  tenant  is  to  be  tested  is  not 
the  length  of  time  that  may  have  elapsed  since  the  last  working  of 
the  mines,  but  it  depends  upon  whether  the  owner  of  the  fee  merely 
discontinued  the  work  for  want  of  capital,  or  because  it  did  not  prove 
profitable,  or  for  any  other  like  reason,  or  whether  he  abandoned 
it  with  an  executed  intention  to  devote  the  land  to  some  other 
use. 

A  mere  cessation  of  work,  for  however  long  a  period,  will  not  de- 
feat the  life  tenant's  right;  but  an  abandonment  for  a  day,  with  a 
view,  in  the  language  of  Lord  Romilly,  "to  some  advantage  to  the 
property,  which  the  fee  owner  considered  would  accompany  such 
discontinuance,  apart  from  the  profits  to  be  made  from  the  sale  of 
the  mineral,"  would  extinguish  any  claim  on  the  part  of  the  life  ten- 
ant. If  the  fee  owner  should  sink  a  shaft,  and  afterwards  erect  a 
dwelling-house  over  it,  or  if  he  should  fill  it  up  and  devote  the  space 
to  agricultural  purposes,  it  would  indicate,  so  clearly,  his  intention 
to  devote  his  estate  to  other  uses  than  mining,  that  the  life  tenant 
could  not  base  any  right  upon  the  prior  opening. 

The  distinction  between  mere  cessation  of  use  and  such  an  aban- 
donment as  has  been  adverted  to,  is  recognized  in  the  cases  in  this 
country. 

In  the  New  York  Supreme  Court,  a  widow  was  held  to  be  dowable 
of  a  bed  of  iron  ore,  although  the  openings  which  had  been  made  by 
the  husband  had  been  partly  filled  up  and  the  work  discontinued  in 
his  lifetime.  Coates  v.  Cheever,  1  Cow.  460. 

Chief  Justice  Shaw,  in  Billings  v.  Taylor,  10  Pick.  460,  expresses 
the  like  view:  "Whatever  doubts  may  have  been  formerly  enter- 
tained, it  seems  now  to  be  well  settled  that  a  widow  is  entitled  to 
dower  in  such  mines  and  quarries  as  were  actuallj^  opened  and  used 
during  the  lifetime  of  the  husband,  and  it  makes  no  difference  whether 
the  husband  continued  to  work  them  to  the  period  of  his  death,  or 


CHAP.  VI.]  GAINES    V.    GREEN    PONT)    MINING    CO.  721 

whether  thej^  have  been  continued  since  his  death,  by  the  heir  or  his 
assignee." 

Stoughton  v.  Leigh,  Coates  v.  Cheever,  and  Billings  v.  Taylor,  are 
cited  with  approbation  by  Chancellor  Green,  in  Reed  v.  Reed,  1 
C.  E.  Gr.  248. 

The  American  cases  have  modified  the  law  of  waste,  to  adapt  it 
to  the  circumstances  of  a  new  and  growing  country,  in  order  to  en- 
courage the  tenant  for  hfe  in  making  a  reasonable  use  of  wild  and 
undeveloped  lands.  Hastings  v.  CruncMeton,  3  Yeates  261;  Findlay 
V.  Smith,  6  Munf.  134;  Ballentine  v.  Poyner,  2  Ha>^w.  110;  Neel  v. 
A^eel,  7  Harris  323;  Irnrin  v.  Covode,  12  Harris  162. 

In  N^eel  v.  Neel,  a  coal  mine  had  been  opened  and  worked  for  fam- 
ilj'-  use,  and  for  the  benefit  of  the  neighbors,  but  a  very  inconsiderable 
quantit}'  had  been  taken  out.  In  that  case,  Judge  Lowrie  said: 
"It  seems,  in  this  case,  that  the  author  of  the  gift  had  sometimes  sold 
coal  out  of  the  pits,  but  I  do  not  conceive  this  to  be  material.  It  is 
sufficient  that  he  opened  them  and  derived  any  profit  from  them, 
even  if  it  were  only  private.  And  the  decisions  refer  to  coal  mines, 
iron  mines,  etc.,  and  the  tenant  for  life  may  work  them,  even  though 
the  working  of  them  may  have  been  discontinued  before  the  death 
of  him  through  whom  the  estate  comes,  and,  if  necessary  to  the  proper 
working  of  them,  may  make  new  openings  in  the  ground." 

In  support  of  these  views  he  cites  the  English  and  American  cases, 
and  ex]3resses  himself  without  reference  to  the  statute  of  1848. 

Chancellor  Kent  says:  "The  American  doctrine  on  the  subject 
of  waste  is  somewhat  varied  from  the  English  law,  and  is  more  en- 
larged and  better  accommodated  to  the  circumstances  of  a  new  and 
growing  country."  4  Comm.  76. 

The  cases  refen-ed  to  will  show  a  strong  inchnation  to  amplify  the 
pri"vileges  of  the  life  tenant. 

In  a  country  like  this,  where  there  are  such  vast  bodies  of  unim- 
proved lands,  v/hich  would  otherwise  lie  dormant  in  the  hands  of  the 
life  tenant,  public  policy  requires  that  the  doctrine  of  waste  should 
be  liberalized,  and  the  decisions  have  uniformly  been  in  that  direc- 
tion. 

The  present  case  illustrates  the  hardship  of  a  close  rule  in  favor 
of  the  fee.  The  life  estate  vested  in  1860,  and  there  is  an  expectancy 
of  twenty  years  more  of  this  life.  A  construction  of  the  law  which 
locks  up  the  land  from  all  beneficial  use  for  so  long  a  period,  and  gives 
the  life  owner  only  the  privilege  of  paying  the  land  tax,  should  not 
be  favored. 

When  the  property  is  unimproved  land,  not  adaptable  to  any 
other  beneficial  use  than  that  of  mining,  the  right  of  the  life  tenant 
to  use  it  reasonably  for  such  purpose  has  some  support  in  the  ad- 
judications in  this  country,  and  is  certainly  not  without  reason  to 
uphold  it. 


722  GAINES    V.    GREEN    POND    MINING    CO.  [CHAP.  VI. 

To  maintain  the  right  of  the  appellants  in  this  case,  it  is  not  neces- 
sary to  broaden  the  rule  to  that  extent. 

The  openings  in  this  case  were  such  as,  under  the  English  cases, 
will  establish  the  right  in  the  life  estate  to  pursue  the  workings  upon 
the  veins  which  had  been  opened. 

It  is  sufficient  to  show  that  openings  were  made  and  ore  taken  out 
with  a  view  to  profit,  and  it  is  wholly  immaterial  whether  the  ore 
was  used  in  the  manufacture  of  copperas  or  for  some  other  commer- 
cial purpose. 

The  evidence  shows  a  mere  cessation  of  the  work,  not  such  an 
abandonment,  in  the  legal  sense  of  that  term,  as  v/ill  defeat  the  right 
of  the  life  tenant.  The  length  of  time  during  which  cessation  con- 
tinued is  immaterial,  so  long  as  the  fact  of  abandonment  is  not 
established. 

The  decree  of  the  chancellor,  so  far  as  it  denies  the  right  of  the 
appellants  to  work  the  veins  of  ore  upon  which  the  openings  had 
been  made  in  the  lifetime  of  the  owner  of  the  fee,  and  so  far  as  it  en- 
joins such  work,  should  be  reversed,  and  in  other  respects  aflirmed. 

Decree  unanimously  reversed. 

Note.  —  A,  tenant  in  fee  simple,  leased  land  to  B  for  mining  pur- 
poses, reserving  rent.  B  did  not  begin  mining  operations  in  the  life 
of  A.  A  died,  and  the  widow  of  A  was  assigned  dower  in  the  land, 
and  was  held  entitled  to  the  rent.  Priddy  v.  Griffith,  150  111.  560. 

In  Billings  v.  Taylor,  10  Pick.  (Mass.)  460,  Shaw,  C.J.,  said 
(p.  461) :  "  The  only  question  appears  to  be,  whether  it  is  sufficiently 
shown  by  the  special  verdict,  that  the  whole  of  the  slate  quarry  de- 
scribed therein  was  opened  and  wrought  previously  to  the  death 
of  the  demandant's  husband,  so  that  it  ought  to  be  taken  into  con- 
sideration, in  connexion  with  the  residue  of  his  estate,  and  dower 
assigned  in  the  whole;  and  the  court  are  all  of  opinion  that  it  was. 
A  tract  of  about  four  acres  lying  together  contained  the  slate  quarry, 
about  a  quarter  of  an  acre  of  which  had  been  dug  over.  The  stone 
lay  partly  above,  and  the  residue  immediately  under  the  surface, 
and  as  in  going  down,  the  quality  improved,  the  practice  had  been  to 
take  a  section  of  ten  or  twelve  feet  square,  and  to  go  down  to  the 
usual  depth,  and  then  begin  on  the  surface  again.  We  think  it  would 
be  too  narrow  a  construction  to  say  that  no  part  of  this  quarry  was 
opened  except  that  portion  which  had  been  actually  dug;  but  it 
must  be  considered  that  the  whole,  lying  together  as  one  tract,  be- 
longing to  one  estate,  and  wrought  in  the  manner  described,  was 
opened,  and  therefore  that  the  widow  was  entitled  to  dower  in  that, 
as  well  as  the  other  estate  of  which  her  husband  had  been  seised 
during  the  coverture." 


CHAP.  VI.]  WILKINSON    V.    WILKINSON.  723 

PADELFORD  v.   PADELFORD. 

7  Pick.  (Mass.)  151.  .1828. 

This  was  an  action  of  waste  against  a  tenant  in  dower. 

The  woodland  described  in  the  declaration  was  disconnected  from 
the  homestead  farm  of  the  defendant's  husband  (on  which  she  has 
lived  since  his  decease),  and  distant  from  it  about  two  miles.  The 
husband  cut  wood  on  this  land  and  used  it  for  fire-wood;  and  the 
defendant  had  not  cut  an  unnecessary  quantity  for  this  purpose. 
She  cut  sparsim  over  the  whole  lot.  There  were  upon  the  lot  several 
pine  trees  fit  for  fire-wood,  some  of  which  the  referees  thought  she 
might  have  rightfully  cut  for  fire-wood,  but  oak  had  been  mostly  or 
wholly  cut  by  her. 

The  reversionary  interests  in  the  woodland  and  in  the  homestead 
were  in  different  individuals.  The  defendant  cut  upon  the  woodland 
four  white-oak  timber  trees,  from  which  posts  were  made  and  used 
in  repairing  fences  on  the  homestead.  She  likewise  cut  two  white- 
oak  trees  on  the  woodland,  which  were  sold  by  her  for  machine  shafts, 
she  receiving  in  exchange  a  quantity  of  fire-wood  as  gi-eat  or  greater 
than  the  trees  would  have  made  if  used  for  that  purpose. 

Per  Curiam.  The  referees  have  reported  that  the  defendant  cut 
oak  trees  for  her  necessary  fuel.  This  she  had  a  right  to  do.  Oaks  are 
found  here  in  so  great  abundance  that  they  are  not  more  valuable 
than  other  trees,  and  they  are  in  common  use  for  fuel.  Neither  was 
it  waste  to  cut  the  four  timber  trees  used  for  posts.  The  only  waste 
which  was  done  consisted  in  cutting  the  other  two  timber  trees  and 
selling  them;  and  though  the  defendant  took  fire-wood  in  exchange, 
this  is  no  justification;  and  she  might  have  procured  sufficient  fire- 
wood without  resorting  to  that  measure. 

Note.  —  On  cutting  timber  to  keep  fences  and  buildings  in  repair, 
see  Calvert  v.  Rich,  91  Ky.  533.  On  cutting  it  for  fire-wood  for  the 
use  of  a  servant  living  off  the  land,  see  Gardiner  v.  Deering,  1  Paige 
(N.Y.)  572. 


WILKINSON  V.  WILKINSON. 

59  Wis.  557.     1884. 

Appeal  from  the  Circuit  Court  for  Grant  County. 

This  is  an  action  by  children  and  grandchildren  of  John  Wilkinson, 
deceased,  who  are  also  the  residuary  devisees  named  in  his  will,  to 
restrain  the  widow  of  said  deceased  from  committing  waste  upon  the 
homestead  occupied  by  her  as  such  widow,  by  cutting  and  selling 


724  WILKINSON    V.    WILKINSON.  [CHAP.  VI. 

timber  therefrom;  and  to  recover  damages  for  the  timber  already- 
cut.  The  complaint  alleged,  among  other  things,  in  effect,  that  the 
land  where  the  timber  was  so  cut  was  unfit  for  agricultural  purposes, 
and  only  fit  to  grow  timber,  and  that  the  defendant  had  cut  and  sold 
posts  therefrom  to  the  value  of  $70,  and  was  continuing  such  acts 
of  waste.  The  cutting  was  alleged  to  have  commenced  January'-  1, 
1882,  and  a  temporary  injunction  was  issued  February  8,  1882. 

The  answer  admitted  the  cutting  of  posts  to  the  value  of  S3o,  and 
alleged,  in  effect,  that  there  were  only  fourteen  acres  of  the  land  that 
was  then  plow  land,  and  that  the  rest  thereof  was  pasture  and  tim- 
ber; that  there  was  more  timber  than  was  needed  or  profitable;  that 
the  timber  she  had  and  proposed  to  cut  was  scrubby,  mostly  bun- 
oaks,  making  only  one  cut  of  posts  to  the  tree,  cumbering  the  ground, 
and  that  the  cutting  of  the  same,  except  a  few  left  for  shade  trees, 
which  she  intended  and  intends  so  to  leave,  would  be,  and  was,  an 
advantage  to  the  land  and  an  increase  to  its  value,  by  gi\'ing  the  grass 
a  better  chance  to  gi-ow  and  making  better  pastures ;  that  where  the 
trees  were  being  cut  off,  the  land  was  well  adapted  for  pasture,  and 
was  equally  valuable  as  such  as  tillable  land;  that  prudent  and  eco- 
nomical farmers  on  adjacent  and  adjoining  lands  were  gi\ing  away 
equally  good  and  better  timber  to  those  who  would  take  it  off;  that 
she  was  not  committing  or  suffering  any  waste,  but  simply  making 
the  land  more  valuable. 

Cassoday,  J.  For  the  purposes  of  this  case,  the  widow  may  be 
regarded  as  the  life  tenant  of  the  lands  in  question.  In  some  states 
where  wild  land  is  connected  with  and  included  in  the  lands  assigned 
to  the  widow  as  dower,  she  is  only  entitled  to  cut  such  wood  and 
timber  as  may  be  necessary  for  the  supply  of  the  dower  estate,  to 
be  actually  used  and  consumed  thereon,  or  for  purposes  connected 
with  the  proper  occupation  and  enjoynnent  thereof.  White  v.  Willis, 
7  Pick.  143;  White  v.  Cutler,  17  Pick.  248;  Miller  v.  Shields,  55  Ind. 
71;  Cannon  v.  Barry,  59  Miss.  289;  Parkins  v.  Coxe,  2  Hay^.  339. 
It  has  been  substantially  held  in  many  states,  and  we  are  inclined 
to  hold  the  rule  to  be  substantially  correct,  that  it  is  not  waste  for 
the  life  tenant  to  cut  down  wood  or  timber,  so  as  to  fit  the  land  for 
cultivation  or  pasture,  provided  this  does  not  damage  or  diminish 
the  value  of  the  inheritance,  and  is  conformable  to  the  rules  of  good 
husbandry;  and  this  is  so,  even  where  the  wood  or  timber  so  cut  is 
sold,  used,  or  consumed  off  the  premises.  Keeler  v.  Eastman,  11  Vt. 
293;  Alexander  v.  Fisher,  7  Ala.  (N.S.)  514;  Hastings  v.  Crunckleton, 
3  Yeates  261;  Givens  v,  McCalmont,  4  Watts  460;  WiUiard  v.  Wil- 
Hard,  56  Pa.  St.  119;  Draion  v.  Smith,  52  Me.  141;  Davis  v.  Gilliam, 
5  Ired.  Eq.  308;  Owen  v.  Hyde,  6  Yerg.  334;  Findlay  v.  Smith,  6  Munf. 
148;  Appeal  of  Campbell,  2  Doug.  (Mich.)  141 ;  Jackson  v.  Brownson. 

7  Johns.  227;  Van  Deusen  v.  Yoimg,  29  N.Y.  30;  Allen  v.  McCoy, 

8  Ohio  418;  Crockett  v.  Crockett,  2  Ohio  St.  180;  Schnehly  v.  Schnebly, 


CHAP.  VI.]  WILKINSON    V.    WILKINSON.  725 

26  111.  116.  In  some  of  these  cases  the  question  of  waste  depended 
somewhat  on  the  proportion  of  woodland  to  the  cultivated  land. 
Owen  V.  Hyde,  supra;  Findlay  v.  Smith,  supra;  Drown  v.  Smith, 
supra;  Hastings  v.  CrunckJefon,  supra.  So  it  has  been  held  that  she 
maj  cut  and  sell  timber  sufficient  to  raise  the  amount  of  money- 
necessary  to  pay  the  taxes  already  due  upon  the  land.  Crockett  v. 
Crockett,  supra. 

Counsel  concede  that  the  widow  had  the  right  to  cut  timber  from 
the  land,  if  she  had  done  so  with  the  bona  fide  purpose  of  clearing 
off  the  sam-e  for  cultivation  or  pasture,  in  case  it  was  fitted  for  that 
purpose,  and  such  use  of  it  would  be  for  the  best  interest  of  the  re- 
mainder-man as  well  as  the  life  tenant;  but  claims  that  she  had  no 
right  to  cut  the  same  merely  for  the  puipose  of  selling  the  posts  for 
the  money  which  they  would  bring.  The  defendant  testified,  in 
effect  (and  in  that  she  was  corroborated  by  the  person  who  did  the 
cutting),  and  her  testimony  in  this  respect  is  not  contradicted,  that 
her  object  in  cutting  the  timber  was  to  clear  up  and  improve  the 
place  and  make  the  pasture  better,  and  hence  more  beneficial  to 
her;  that  she  did  not  clear  it  all  off  as  she  went  along,  because  she 
was  stopped;  that  she  would  have  done  so  if  she  had  not  been 
stopped;  that  her  intention  was  to  thin  out  the  trees,  let  in  the  sun, 
and  make  the  pasture  better,  and  that  she  so  instructed  the  man 
who  did  the  cutting.  The  court  found,  in  effect,  such  to  be  her  inten- 
tion. There  is  evidence  to  the  effect  that,  had  this  intention  been 
carried  out,  it  would  have  improved  the  use  and  value  of  the  land, 
and  the  court  substantially  so  found.  We  do  not  feel  warranted  in 
disturbing  these  findings. 

Of  course,  she  had  no  right  to  injure  or  depreciate  the  value  of 
the  inheritance,  for  that  belonged  to  the  remainder-men.  Robinson 
V.  Kime,  70  N.Y.  151.  But  the  question  whether  she  had  so  injured 
or  diminished  the  use  and  value  of  the  inheritance  was  not  to  be  deter- 
mined by  the  condition  of  the  property  at  the  precise  moment  when 
she  was  stopped  by  the  injunction,  but  rather  by  the  condition  it 
would  have  been  in  had  she  been  permitted  to  carry  her  manifest 
purpose  into  execution.  The  real  question  was  whether  in  view  of 
the  character  and  condition  of  the  land,  the  amount  of  plow,  pas- 
ture, and  wood  land,  and  all  the  circumstances,  it  was  good  husban- 
dry to  make  pasture  of  the  land  where  the  timber  in  question  was 
cut.  Upon  this  question  the  evidence  was  conflicting,  but  we  are 
inclined  to  think  the  trial  judge  was  justified  in  holding  as  he  did. 
If  it  was  good  husbandry  to  take  off  the  timber  so  as  to  improve  the 
land  for  pasture,  then  the  remainder-men  are  in  no  condition  to 
complain  because  she  sold  $35  or  !S50  worth  of  posts,  instead  of  burn- 
ing up  all  that  was  cut  from  the  land. 

Note.  —  See,  accord,  Dawson  v.  Coffman,  28  Ind.  220;  Cannon 


726  HARROW    SCHOOL    V.    ALDERTON.  [cHAP.  VI. 

V.  Barry,  59  Miss.  289,  303;  Disher  v.  Disher,  45  Neb.  100;  King  v. 
Miller,  99  N.C.  583;  Keeler  v.  Eastrnan,  11  Vt.  293. 
Cf.  Clark  v.  Holden,  7  Gray  (Mass.)  8. 


HARROW  SCHOOL  v.   ALDERTON. 

2  B.  &  p.  86.     1800. 

This  was  an  action  of  waste  on  the  Statute  of  Gloucester,  for 
ploughing  up  three  closes  of  meadow-land,  and  converting  the  same 
into  garden-ground,  and  building  thereupon,  to  the  damage  of  the 
plaintiff  of  500Z.   Plea,  Not  guilty. 

The  cause  was  tried  before  Heath,  J.,  at  the  Westminster  sittings 
after  last  Trinity  Term,  when  the  jury  found  a  verdict  for  the  plain- 
tiff with  three  farthings  damages,  being  one  farthing  for  each  close. 

In  the  Michaelmas  Term  following,  Cockell,  Serjt.,  obtained  a 
rule,  calling  on  the  plaintiff  to  shew  cause  why  the  judgment  should 
not  be  entered  up  for  the  defendant,  on  account  of  the  smallness  of 
the  damages  recovered,  on  the  principle  that  de  minimis  non  curat 
lex;  and  cited  in  support  of  the  application  Bro.  Abr.  tit.  Waste,  pi. 
123.  Co.  Lit.  54  a.  2  Inst.  308.  Cro.  Car.  414,  452.  Finch's  Law, 
lib.  1,  cap.  3,  s.  34,  adopted  3  Black.  Com.  228.  Vin.  Abr.  tit.  Waste 
N.  and  Buller's  N.P.  120. 

Lord  Eldon,  Ch.J.  I  confess  that,  when  this  application  was  first 
made,  I  was  not  aware  that  under  the  circumstances  of  the  case  the 
defendant  was  entitled  to  demand  judgment;  but  my  Brother  Heath 
has  satisfied  me  that  the  application  is  supported  by  the  current  of 
authorities.  I  do  not,  indeed,  see  precisely  on  what  ground  those  de- 
cisions have  proceeded;  though  I  can  easily  conceive  many  cases  in 
which  it  may  be  extremely  unconscientious  for  a  plaintiff  to  take 
advantage  of  his  judgment,  where  such  small  damages  have  been 
recovered  as  in  this  case.  As,  if  the  owner  of  land  suffer  his  tenant 
to  lay  out  money  upon  the  premises,  and  then  bring  an  action  of 
waste  to  recover  possession  when  the  land  may  have  been  improved 
to  ten  times  the  original  value.  The  cases  do  not  appear  to  authorize 
the  distinction  contended  for  by  my  Brother  Shepherd.  Whether 
the  waste  committed  be  by  alteration  of  the  property,  or  by  deterio- 
ration, stiU  the  jury,  in  estimating  the  damages,  take  into  considera- 
tion the  injury  which  the  plaintiff  has  sustained;  and  in  this  case  the 
jury  have  estimated  the  damage  which  these  plaintiffs  have  sustained, 
by  the  alteration  of  their  property,  at  three  farthings  only.  The 
courts  of  common  law  seem  to  have  entertained  a  sort  of  equitable 
jurisdiction  in  cases  of  this  kind. 

Heath,  J.  This  doctrine  prevailed  as  early  as  the  time  of  Bracton, 
who  wrote  before  the  Statute  of  Gloucester.  With  respect  to  the 


CHAP.  VI.]  SMYTH    V.    CARTER.  727 

distinction  taken,  there  is  no  reason  why  pecuniary  damages  should 
not  be  assessed  for  the  alteration  of  property  as  well  as  for  the  deteri- 
oration. Thus,  if  a  tenant  convert  a  furzebrake  in  which  game  have 
bred  into  arable  or  pasture,  by  which  its  real  value  would  be  improved, 
but  its  value  to  the  landlord  depreciated,  it  would  be  the  business 
of  the  jury  to  assess  damages  to  the  landlord  thereon. 
RooKE,  J.  I  am  of  the  same  opinion. 

Rule  absolute. 


CLEMENCE  v.  STEERE. 

1  R.I.  272.     1850. 

Action  of  waste.  The  reversioner  complained  because  the  life 
tenant  had  converted  meadow^  land  into  pasture  land. 

Greene,  C.J.  The  defendant  is  charged  with  having  converted 
meadow  land  into  pasture  land.  In  England  this  would  be  waste. 
But  we  are  not  to  apply  the  English  law  too  strictly.  Our  lands  are  in 
many  respects  cultivated  differently  from  land  in  England ;  and  this 
difference  is  to  be  taken  into  account.  Here  it  is  necessary  to  show 
that  the  change  is  detrimental  to  the  inheritance  and  contrary  to  the 
ordinary  course  of  good  husbandry.  If  in  this  case  the  change 
injured  the  farm,  or  was  such  a  change  as  no  good  farmer  would 
make,  it  was  waste. 


SMYTH  V.  CARTER. 

18  Beav.  78.     1853. 

In  1852,  the  defendant  became  owner  of  a  public-house  and 
premises  which  had  formerly  been  built  on  part  of  the  waste  of  Bed- 
minster,  of  which  the  plaintiffs  were  the  lords  of  the  manor.  Rent 
had  been  paid  by  the  previous  o^vners  to  the  plaintiffs. 

The  plaintiffs  alleged,  that  the  defendant  was  pulling  down  the 
house,  in  order  to  erect  a  brewery  in  its  place,  which,  as  it  would 
overlook  the  plaintiffs'  residence,  would  form  an  intolerable  nui- 
sance. In  July  last,  the  plaintiffs  obtained  an  injunction  to  restrain 
the  defendant  from  so  doing,  and  the  defendant  now  moved  to  dis- 
solve it. 

Mr.  Roupell  and  Mr.  C.  M.  Roupell,  in  support  of  the  motion, 
contended,  first,  that  there  was  no  evidence  of  the  defendant's  inten- 
tion to  erect  a  brewery ;  and  that,  from  the  ruinous  state  of  the  prem- 
ises, the  defendant's  alterations  and  outlay  would,  at  the  utmost,  be 
"meliorating  waste,"  which,  far  from  injuring  the  plaintiffs,  would 
be  for  their  benefit. 


728  MELMS    V.    PABST    BREWING    COMPANY.  [CHAP.  VI. 

The  Master  of  the  Rolls.  Assuming  the  plaintiffs  to  be  land- 
lords, and  the  defendant  tenant,  I  entertain  no  doubt  that  this  court 
will  restrain  a  tenant  from  pulling  down  a  house  and  building  any 
other  which  the  landlord  dislikes.  It  is  not  sufficient  to  show  that  the 
house  proposed  to  be  built  is  a  better  one;  and  the  fact  of  the  defend- 
ant's showing  that  the  landlord  does  not  know  his  own  interest  will 
not  affect  the  judgment  of  the  court  in  any  respect  whatever.  The 
landlord  has  a  right  to  exercise  his  own  judgment  and  caprice, 
whether  there  shall  be  any  change;  and  if  he  objects,  the  coml  will 
not  allow  a  tenant  to  pull  down  one  house  and  build  another  in  its 
place. 

Note.  —  See  Klie  v.  Von  Brooch,  56  N.J.  Eq.  18,  27;  Jackson  v. 
Andrew,  18  Johns.  (N.Y.)  431;  Davenport  v.  Magoon,  13  Or.  3; 
Dooly  V.  Stringham,  4  Utah  107;  Brock  v.  Dole,  66  Wis.  142. 


MELMS  V.  PABST  BREWING  COMPANY. 

104  Wis.  7.     1899. 

Appeal  from  a  judgment  of  the  Circuit  Court  for  Milwaukee 
County:  George  Clementson,  Judge.  Affirmed. 

This  is  an  action  for  waste,  brought  by  reversioners  against  the 
defendant,  which  is  the  owner  of  an  estate  for  the  life  of  another  in  a 
quarter  of  an  acre  of  land  in  the  city  of  Milwaukee.  The  waste 
claimed  is  the  destruction  of  a  dwelling-house  upon  the  land,  and  the 
grading  of  the  same  down  to  the  level  of  the  street.  The  complaint 
demands  double  damages,  under  sec.  3176,  Stats.  1898. 

The  quarter  of  an  acre  of  land  in  question  is  situated  upon  Vir- 
ginia Street,  in  the  city  of  Milwaukee,  and  was  the  homestead  of  one 
Charles  T.  Melms,  deceased.  The  house  thereon  was  a  large  brick 
building  built  by  Mehns  in  the  year  1864,  and  cost  more  than 
S20,000.  At  the  time  of  the  building  of  the  house,  Melms  owned  the 
adjoining  real  estate,  and  also  owned  a  brewery  upon  a  part  of  the 
premises.  Charles  T.  Melms  died  in  the  year  1869,  leaving  his  estate 
involved  in  financial  difficulties.  After  his  decease,  both  the  brewery 
and  the  homestead  were  sold  and  conveyed  to  the  Pabst  Brewing 
Company,  but  it  was  held  in  the  action  of  Melnis  v.  Pabst  B.  Co.,  93 
Wis.  140,  that  the  brewing  company  only  acquired  Mrs.  Melms's 
life  estate  in  the  homestead,  and  that  the  plaintiffs'  in  this  action 
were  the  owners  of  the  fee,  subject  to  such  life  estate.  As  to  the 
brewery  property,  it  was  held  in  an  action  under  the  same  title,  de- 
cided at  the  same  time,  and  reported  in  93  Wis.  153,  that  the  brewing 
company  acquired  the  full  title  in  fee.  The  homestead  consists  of  a 
piece  of  land  ninety  feet  square,  in  the  center  of  which  the  aforesaid 


CHAP.  VI.]  MELuMS    IK    PABST    BREWING    COMPANY.  729 

dwelling-house  stood;  and  this  parcel  is  connected  with  Virginia 
Street  on  the  south  by  a  strip  forty-five  feet  wide  and  sixty  feet  long, 
naaking  an  exact  quarter  of  an  acre. 

It  clearly  appears  by  the  evidence  that  after  the  purchase  of  this 
land  by  the  brewing  company  the  general  character  of  real  estate 
upon  Virginia  Street  about  the  homestead  rapidly  changed,  so  that 
soon  after  the  year  1890  it  became  wholly  undesirable  and  unprofit- 
able as  residence  property.  Factories  and  railway  tracks  increased  in 
the  vicinity,  and  the  balance  of  the  property  was  built  up  with  brew- 
ing buildings,  until  the  quarter  of  an  acre  homestead  in  question 
became  an  isolated  lot  and  building,  standing  from  twenty  to  thirty 
feet  above  the  level  of  the  street,  the  balance  of  the  property  having 
been  graded  dowTi  in  order  to  fit  it  for  business  purposes.  The  evi- 
dence shows  without  material  dispute  that,  owing  to  these  circum- 
stances, the  residence,  which  was  at  one  time  a  handsome  and  de- 
sirable one,  became  of  no  practical  value,  and  would  not  rent  for 
enough  to  pay  the  taxes  and  insurance  thereon;  whereas,  if  the  prop- 
erty were  cut  down  to  the  level  of  the  street,  so  as  to  be  capable  of 
being  used  as  business  property,  it  would  again  be  useful,  and  its 
value  would  be  largely  enhanced.  Under  these  circumstances,  and 
prior  to  the  judgment  in  the  former  action,  the  defendant  removed 
the  building  and  graded  down  the  property  to  about  the  level  of 
the  street,  and  these  are  the  acts  which  it  is  claimed  constitute 
waste. 

The  action  was  tried  before  the  court  without  a  jury,  and  the  court 
found,  in  addition  to  the  facts  above  stated,  that  the  removal  of  the 
building  and  grading  down  of  the  earth  was  done  by  the  defendant  in 
1891  and  1892,  believing  itself  to  be  the  owner  in  fee  simple  of  the 
property,  and  that  by  said  acts  the  estate  of  the  plaintiffs  in  the 
property  was  substantially  increased,  and  that  the  plaintiffs  have 
been  in  no  way  injured  thereby.  Upon  these  findings  the  complaint 
was  dismissed,  and  the  plaintiffs  appeal. 

WiNSLow,  J.  Our  statutes  recognize  waste,  and  provide  a  remedy 
by  action  and  the  recovery  of  double  damages  therefor  (Stats.  1898, 
sec.  3170  et  seq.) ;  but  they  do  not  define  it.  It  may  be  either  volun- 
tary or  permissive,  and  may  be  of  houses,  gardens,  orchards,  lands, 
or  woods  (Id.  sec.  3171);  but,  in  order  to  ascertain  whether  a  given 
act  constitutes  waste  or  not,  recourse  must  be  had  to  the  common 
law  as  expounded  by  the  text-books  and  decisions.  In  the  present 
case  a  large  dwelling-house,  expensive  when  constructed,  has  been 
destroyed,  and  the  ground  has  been  graded  down,  by  the  owner  of 
the  life  estate,  in  order  to  make  the  property  serve  business  purposes. 
That  these  acts  would  constitute  waste  under  ordinary  circumstances 
cannot  be  doubted.  It  is  not  necessary  to  delve  deeply  into  the  Year 
Books,  or  philosophize  extensively  as  to  the  meaning  of  early  judicial 
utterances,  in  order  to  arrive  at  this  conclusion.    The  following 


730  MELMS    V.    PABST    BREWING    COMPANY.  [cHAP.  VL 

definition  of  waste  was  approved  by  this  court  in  Bandlow  v.  Thieme, 
53  Wis.  57 :  "  It  may  be  defined  to  be  any  act  or  omission  of  duty  by 
.  \  tenant  of  land  which  does  a  lasting  injury  to  the  freehold,  tends  to 
'^he  pei-manent  loss  of  the  owner  of  the  fee,  or  to  destroy  or  lessen  the 
value  of  the  inheritance,  or  to  destroy  the  identity  of  the  property', 
or  impair  the  evidence  of  title."  In  the  same  case  it  was  also  said: 
"The  damage  being  to  the  inheritance,  and  the  heir  or  the  rever- 
sioner ha\ang  the  right  of  action  to  recover  it,  imply  that  the  injury 
must  be  of  a  lasting  and  permanent  character."  And  in  Brock  v. 
Dole,  66  Wis.  142,  it  was  also  said  that  "any  material  change  in  the 
nature  and  character  of  the  buildings  made  by  the  tenants  is  waste, 
although  the  value  of  the  property  should  be  enhanced  by  the 
alteration." 

These  recent  judicial  utterances  in  this  court  settle  the  general 
rules  which  govern  waste,  without  difficulty,  and  it  may  be  said,  also, 
that  these  rules  are  in  accord  with  the  general  current  of  the  authori- 
ties elsewhere.  But,  while  they  are  correct  as  general  expressions  of 
the  law  upon  the  subject,  and  were  properly  applicable  to  the  cases 
under  consideration,  it  must  be  remembered  that  they  are  general 
rules  onl}',  and,  like  most  general  propositions,  are  not  to  be  accepted 
without  limitation  or  reserve  under  any  and  all  circumstances.  Thus 
the  ancient  English  rule  which  prevented  the  tenant  from  converting 
a  meadow  into  arable  land  was  early  softened  down,  and  the  doctrine 
of  meliorating  waste  was  adopted,  which,  without  changing  the  legal 
definition  of  waste,  still  allowed  the  tenant  to  change  the  course  of 
husbandry  upon  the  estate  if  such  change  be  for  the  betterment  of 
the  estate.  Bewes,  Waste,  134  et  seq.,  and  cases  cited.  Again,  and  in 
accordance  with  this  same  principle,  the  rule  that  any  change  in  a 
building  upon  the  premises  constitutes  waste  has  been  greatly  modi- 
fied, even  in  England;  and  it  is  now  well  settled  that,  while  such 
change  may  constitute  technical  waste,  still  it  will  not  be  enjoined  in 
equity  when  it  clearly  appears  that  the  change  will  be,  in  effect,  a 
meliorating  change  which  rather  improves  the  inheritance  than  in- 
jures it.  Doherty  v.  Allman,  3  App.  Cas.  709;  In  re  Mcintosh,  61 
Law  J.  Q.B.  164.  Following  the  same  general  line  of  reasoning,  it 
was  early  held  in  the  United  States  that,  while  the  English  doctrine 
as  to  waste  was  a  part  of  our  common  law,  still  the  cutting  of  timber 
in  order  to  clear  up  wild  land  and  fit  it  for  cultivation,  if  consonant 
with  the  rules  of  good  husbandry,  was  not  waste,  although  such  acts 
would  clearly  have  been  waste  in  England.  Tiedeman,  Real  Prop. 
(2d  ed.),  §  74;  Rice,  Mod.  Law  Real  Prop.  §§  160,  161;  Wilkinson  v. 
Wilkinson,  59  Wis.  557. 

These  familiar  examples  of  departure  from  ancient  rules  will  serve 
to  show  that,  while  definitions  have  remained  much  the  same,  the 
law  upon  the  subject  of  waste  is  not  an  unchanging  and  unchangeable 
code,  which  was  crystallized  for  all  time  in  the  days  of  feudal  ten- 


CUAF.  VI.]  MELMS    V.    PABST   BREWING    COMPAlSl'l.  731 

ures,  but  that  it  is  subject  to  such  reasonable  modifications  as  may  be 
demanded  by  the  growth  of  civihzation  and  varying  conditions.  And 
so  it  is  now  laid  down  that  the  same  act  may  be  waste  in  one  part  of 
the  country  while  in  another  it  is  a  legitimate  use  of  the  land,  and 
that  the  usages  and  customs  of  each  community  enter  largely  into 
the  settlement  of  the  question.  Tiedeman,  Real  Prop.  (2d  ed.),  §  73. 
This  is  entirely  consistent  with,  and  in  fact  springs  from,  the  central 
idea  upon  which  the  disability  of  waste  is  now,  and  always  has  been, 
founded,  namely,  the  preservation  of  the  property  for  the  benefit  of 
the  owner  of  the  future  estate  without  permanent  injury  to  it.  This 
element  will  be  found  in  all  the  definitions  of  waste,  namely,  that  it 
must  be  an  act  resulting  in  permanent  injury  to  the  inheritance  or 
future  estate.  It  has  been  frequently  said  that  this  injury  may  con- 
sist either  in  diminishing  the  value  of  the  inheritance,  or  increasing 
its  burdens,  or  m  destroying  the  identity  of  the  property,  or  impair- 
ing the  evidence  of  title.  The  last  element  of  injury  so  enumerated, 
while  a  cogent  and  persuasive  one  in  former  times,  has  lost  most,  if 
not  all,  of  its  force  at  the  present  time.  It  was  important  when  titles 
were  not  registered,  and  descriptions  of  land  wei'e  frequently  depend- 
ent upon  natural  monuments  or  the  uses  to  which  the  land  was  put  ; 
but  since  the  universal  adoption  of  accurate  surveys  and  the  estab- 
lishment of  the  system  of  recording  conveyances,  there  can  be  few 
acts  which  will  impair  any  evidence  of  title.  Doherty  v.  Allman,  3 
App.  Cas.  709;  Bewes,  Waste,  129,  130,  et  seq.  But  the  principle  that 
the  reversioner  or  remainderman  is  ordinarily  entitled  to  receive  the 
identical  estate,  or,  in  other  words,  that  the  identity  of  the  property 
is  not  to  be  destroyed,  still  remains,  and  it  has  been  said  that  changes 
in  the  nature  of  buildings,  though  enhancing  the  value  of  the  prop- 
erty, will  constitute  waste  if  they  change  the  identity  of  the  estate. 
Brock  V.  Dole,  66  Wis.  142.  This  principle  was  enforced  in  the  last- 
named  case,  where  it  was  held  that  a  tenant  from  year  to  year  of  a 
room  in  a  frame  building  would  be  enjoined  from  constructing  a 
chimney  in  the  building  against  the  objection  of  his  landlord.  The 
importance  of  this  rule  to  the  landlord  or  owner  of  the  future  estate 
camiot  be  denied.  Especially  is  it  valuable  and  essential  to  the  pro- 
tection of  a  landlord  who  rents  his  premises  for  a  short  time.  He  has 
fitted  his  premises  for  certain  uses.  He  leases  them  for  such  uses,  and 
he  is  entitled  to  receive  them  back  at  the  end  of  the  term  still  fitted 
for  those  uses;  and  he  may  well  say  that  he  does  not  choose  to  have 
a  different  property  returned  to  him  from  that  which  he  leased,  even 
if,  upon  the  taking  of  testimony,  it  might  be  found  of  greater  value 
by  reason  of  the  change.  Many  cases  will  be  found  sustaining  this 
rule;  and  that  it  is  a  wholesome  rule  of  law,  operating  to  prevent 
lawless  acts  on  the  part  of  tenants,  cannot  be  doubted,  nor  is  it  in- 
tended to  depart  therefrom  in  this  decision.  The  case  now  before  us, 
however,  bears  little  likeness  to  such  a  case,  and  contains  elements 


732  MELMS    V.    PABST    BREWING    COMPANY.  [CHAP.  VI. 

SO  radically  different  from  those  present  in  Brock  v.  Dole,  66  Wis. 
142,  that  we  cannot  regard  that  case  as  controlling  this  one. 

There  are  no  contract  relations  in  the  present  case.  The  defendants 
are  the  gi-antees  of  a  life  estate,  and  their  rights  may  continue  for  a 
number  of  years.  The  evidence  shows  that  the  property  became  value- 
less for  the  purpose  of  residence  property  as  the  result  of  the  growth 
and  development  of  a  great  city.  Business  and  manufacturing  inter- 
ests advanced  and  surrounded  the  once  elegant  mansion,  until  it 
stood  isolated  and  alone,  standing  upon  just  enough  ground  to  sup- 
port it,  and  surrounded  by  factories  and  railway  tracks,  absolutely 
undesirable  as  a  residence  and  incapable  of  any  use  as  business  prop- 
erty. Here  was  a  complete  change  of  conditions,  not  produced  by 
the  tenant,  but  resulting  from  causes  which  none  could  control.  Can 
it  be  reasonably  or  logically  said  that  this  entire  change  of  condition 
is  to  be  completely  ignored,  and  the  ironclad  rule  applied  that  the 
tenant  can  make  no  change  in  the  uses  of  the  property  because  he 
will  destroy  its  identity?  Must  the  tenant  stand  by  and  preserve  the 
useless  dwelling-house,  so  that  he  may  at  some  future  time  turn  it 
over  to  the  reversioner,  equally  useless?  Certainly,  all  the  analogies 
are  to  the  contrary.  As  we  have  before  seen,  the  cutting  of  timber, 
which  in  England  was  considered  waste,  has  become  in  this  country 
an  act  which  may  be  waste  or  not,  according  to  the  surrounding  con- 
ditions and  the  rules  of  good  husbandry;  and  the  same  rule  applies 
to  the  change  of  a  meadow  to  arable  land.  The  changes  of  conditions 
which  justify  these  departures  from  early  inflexible  rules  are  no  more 
marked  nor  complete  than  is  the  change  of  conditions  which  destroys 
the  value  of  residence  property  as  such  and  renders  it  only  useful  for 
business  purposes.  Suppose  the  house  in  question  had  been  so  situ- 
ated that  it  could  have  been  remodeled  into  business  property; 
would  any  court  of  equity  have  enjoined  such  remodeling  under  the 
circumstances  here  shown,  or  ought  any  court  to  render  a  judgment 
for  damages  for  such  an  act?  Clearly,  we  think,  not.  Again,  suppose 
an  orchard  to  have  become  permanently  unproductive  through  dis- 
ease or  death  of  the  trees,  and  the  land  to  have  become  far  more 
valuable,  by  reason  of  new  conditions,  as  a  vegetable  garden  or 
wheat  field,  is  the  life  tenant  to  be  compelled  to  preserve  or  renew 
the  useless  orchard,  and  forego  the  advantages  to  be  derived  from  a 
different  use?  Or  suppose  a  farm  to  have  become  absolutely  unprofit- 
able, by  reason  of  change  of  market  conditions,  as  a  grain  farm,  but 
very  valuable  as  a  tobacco  plantation,  would  it  be  waste  for  the  life 
tenant  to  change  the  use  accordingly,  and  remodel  a  now  useless 
bam  or  granary  into  a  tobacco  shed?  All  these  questions  naturally 
suggest  their  own  answer,  and  it  is  certainly  difficult  to  see  why,  if 
change  of  conditions  is  so  potent  in  the  case  of  timber,  orchards,  or 
kind  of  crops,  it  should  be  of  no  effect  in  the  case  of  buildings  simi- 
larly affected. 


CHAP.  VI.]      MELMS  V.    PABST  BREWING  COMPANY.  733 

It  is  certainly  true  that  a  case  involving  so  complete  a  change  of 
situation  as  regards  buildings  has  been  rarely,  if  ever,  presented  to 
the  courts,  yet  we  are  not  without  authorities  approaching  very 
nearly  to  the  case  before  us.  Thus,  in  the  case  of  Doherty  v.  Allman, 
3  App.  Cas.  709,  before  cited,  a  court  of  equity  refused  an  injunction 
preventing  a  tenant  for  a  long  term  from  changing  storehouses  into 
dwelling-houses,  on  the  ground  that  by  change  of  conditions  the 
demand  for  storehouses  had  ceased  and  the  property  had  become 
worthless,  whereas  it  would  be  productive  when  fitted  for  dwelling- 
houses.  Again,  in  the  case  of  Sherrill  v.  Conncrr,  107  N.C.  630,  which 
was  an  action  for  permissive  waste  against  a  tenant  in  dower,  who 
had  permitted  large  barns  and  outbuildings  upon  a  plantation  to  fall 
into  decay,  it  was  held  that,  as  these  buildings  had  been  built  before 
the  Civil  War  to  accommodate  the  operation  of  the  plantation  by 
slaves,  it  was  not  necessarily  waste  to  tear  them  down,  or  allow  them 
to  remain  unrepaired,  after  the  war,  when  the  conditions  had  com- 
pletely changed  by  reason  of  the  emancipation  and  the  changed 
methods  of  use  resulting  therefrom;  and  that  it  became  a  question 
for  the  jury  whether  a  prudent  owner  of  the  fee,  if  in  possession, 
would  have  suffered  the  unsuitable  barns  and  buildings  to  fall  into 
decay,  rather  than  incur  the  cost  of  repair.  This  last  case  is  very  per- 
suasive and  well  reasoned,  and  it  well  states  the  principle  which  we 
think  is  equally  applicable  to  the  case  before  us.  In  the  absence  of 
any  contract,  express  or  implied,  to  use  the  property  for  a  specified 
purpose,  or  to  return  it  in  the  same  condition  in  which  it  was  re- 
ceived, a  radical  and  permanent  change  of  surrounding  conditions, 
such  as  is  presented  in  the  case  before  us,  must  always  be  an  impor- 
tant, and  sometimes  a  controlling,  consideration  upon  the  question 
whether  a  physical  change  in  the  use  of  the  buildings  constitutes 
waste. 

In  the  present  case  this  consideration  was  regarded  by  the  trial 
court  as  controlling,  and  we  are  satisfied  that  this  is  the  right  view. 
This  case  is  not  to  be  construed  as  justifying  a  tenant  in  making 
substantial  changes  in  the  leasehold  property,  or  the  buildings 
thereon,  to  suit  his  own  whim  or  convenience,  because,  perchance,  he 
may  be  able  to  show  that  the  change  is  in  some  degree  beneficial. 
Under  all  ordinary  circumstances  the  landlord  or  reversioner,  even  in 
the  absence  of  any  contract,  is  entitled  to  receive  the  property  at  the 
close  of  the  tenancy  substantially  in  the  condition  in  which  it  was 
when  the  tenant  received  it;  but  when,  as  here,  there  has  occurred  a 
complete  and  permanent  change  of  surrounding  conditions,  which 
has  deprived  the  property  of  its  value  and  usefulness  as  previously 
used,  the  question  whether  a  life  tenant,  not  bound  by  contract  to 
restore  the  property  in  the  same  condition  in  which  he  received  it, 
has  been  guilty  of  waste  in  making  changes  necessary  to  make  the 
property  useful,  is  a  question  of  fact  for  the  jury  under  proper  in- 


734  CHALMERS    V.    SMITH.  [cHAP.  VI. 

structions,  or  for  the  court  where,  as  in  the  present  case,  the  question 
is  tried  by  the  court. 
By  the  Court.  Judgment  affirmed. 


CHALMERS   v.   SMITH. 

152  Mass.  561.     1891. 

The  plaintiffs  purchased  the  land  on  which  the  bam  mentioned 
in  the  declaration  stood  on  July  19,  1887.  The  defendants,  as  co- 
partners, occupied  the  barn  under  an  oral  lease  from  the  former 
owners  at  the  time  of  the  purchase,  and  continued  in  occupation 
under  that  lease  until  its  term  expired,  July  1,  1888.  In  June,  1888, 
the  defendants,  by  an  oral  bargain,  hired  the  barn  of  the  plaintiffs 
for  another  year  from  July  1,  1888,  at  a  rent  of  seventy-five  dol- 
lars. On  the  morning  of  July  31,  1888,  the  bam  fell,  its  floors  settling 
and  many  of  its  beams  being  broken.  The  plaintiffs  contended  and 
offered  evidence  tending  to  show  that  the  bam  fell  from  overloading, 
and  that  the  weight  put  into  it  by  the  defendants  was  excessive, 
and  improperly  distributed.  But  the  defendants  denied  this,  and 
contended  and  offered  evidence  tending  to  show  that  the  accident 
was  caused  by  the  defective  construction  of  the  bam.  It  also  ap- 
peared in  evidence,  that  the  defendants  remained  in  occupation  of 
the  barn  until  July  1,  1889,  and  that  they  had  paid  the  rent  for  the 
full  term  before  this  action  was  brought. 

When  the  plaintiffs  rested  their  case,  the  defendants  moved  for  a 
verdict,  on  the  ground  that  the  action  could  not  be  maintained  upon 
the  pleadings  and  evidence,  but  the  judge  overruled  the  motion;  and 
the  defendants  excepted. 

The  judge  submitted  the  case  to  the  jury  upon  instructions,  to 
which  no  exception  was  taken,  which  allowed  them  to  find  for  the 
plaintiffs,  if  they  found  in  fact  that  the  fall  of  the  bam  was  caused 
by  an  apparently  unreasonable  use  of  it  by  the  defendants. 

If  the  case  was  properly  submitted  to  the  jury,  judgment  was  to 
be  entered  for  the  plaintiffs;  otherwise,  such  disposition  of  the  case 
was  to  be  made  as  might  be  proper. 

Knowlton,  J.  The  jury  have  found  that  the  defendants  unrea- 
sonably used  the  plaintiffs'  barn  by  putting  into  it  a  weight  which 
was  apparently,  and  in  fact,  excessive.  This  was  something  more 
than  a  mere  omission  which  would  constitute  permissive  waste.  It 
was  a  positive,  unreasonable  act,  of  a  kind  likely  to  cause  injury  to 
the  plaintiffs'  property.  Such  an  act,  which  results  in  damage,  is 
voluntary  waste  on  the  part  of  a  tenant  who  is  guilty  of  it. 

A  tenant  at  will  who  commits  voluntary  waste  is  liable  to  his  land- 
lord in  an  action  of  trespass  quare  clausum.  His  act  terminates  his 


CHAP.  VI.]  MOORE    V.    TOWNSHEND.  735 

right  as  a  tenant,  and  entitles  the  landlord  to  treat  him  as  a  trespasser 
in  doing  it.  Starr  v.  Jackson,  11  Mass.  519;  Lienow  v.  Ritchie,  8  Pick. 
235;  Daniels  v.  Pond,  21  Pick.  367;  Lothrop  v.  Thayer,  138  Mass. 
466,  473. 

A  tenant  at  will  as  well  as  a  tenant  for  life  or  for  years  is  under  an 
implied  agreement  to  use  the  premises  in  a  tenant-like  manner,  and 
not  by  his  voluntary"  act  umiecessarily  to  injure  them.  While  this 
agreement  does  not  include  an  obligation  on  the  part  of  a  tenant  at 
will  to  repair  defects  resulting  from  the  action  of  the  elements,  or 
from  a  reasonable  use  of  the  premises,  or  from  an  unavoidable  acci- 
dent, it  creates  a  liability  in  an  action  of  contract  for  a  wrongful 
act  in  violation  of  it.  1  Add.  Cont.  (8th  ed.)  383.  Holford  v.  Dunnett, 
7  M.  &  W.  348;  United  States  v.  Bostwick,  94  U.S.  53,  66. 

Judgment  for  the  plaintiffs. 


MOORE  V.  TOWNSHEND. 

33  N.J.  L.  284.     1869. 

This  was  an  action  on  the  case  in  the  na,ture  of  waste,  to  recover 
damages  for  permissive  waste,  tried  at  the  Cumberland  Circuit. 
The  plaintiff,  on  the  5th  of  November,  1853,  by  a  lease,  under  seal, 
demised  to  the  defendant  the  premises  known  as  The  Eagle  Glass 
Works,  in  the  county  of  Cumberland,  together  with  one  hundred 
and  fifty  moulds,  and  all  the  tools  of  every  description  connected 
with  the  glass  manufacturing  business  at  that  manufactory;  to  hold 
for  the  term  of  two  years  and  eight  months,  at  a  yearly  rent  of  one 
thousand  dollars.  The  lease  contained  a  covenant,  by  the  tenant, 
for  the  re-delivery  of  the  moulds  and  tools  to  the  lessor,  at  the  ex- 
piration of  the  term,  in  as  good  condition  as  they  were  in  at  the  time 
of  the  demise,  reasonable  wear  and  tear  and  fire  excepted.  It  also 
contained  the  following  clause:  "It  being  understood  and  agreed 
between  the  said  parties  that  said  Moore  has  the  privilege  of  laying 
out  one  hundred  dollars  per  year  in  repairs  on  said  property,  and 
deducting  the  same  from  the  rent."  There  was  no  other  covenant  in 
the  lease  on  the  subject  of  repairs.  It  was  shown,  at  the  trial,  that 
twenty-one  dollars  and  fifty  cents  had  been  expended  in  repairs  dur- 
ing the  continuance  of  the  lease,  of  which  sum  six  dollars  and  ninety- 
five  cents  had  been  deducted  from  the  rent,  the  balance  of  which 
had  been  paid. 

The  jury  found  a  verdict  for  the  plaintiff,  and  assessed  his  damages 
at  five  hundred  and  fifty  dollars. 

A  rule  to  show  cause  why  a  new  trial  should  not  be  granted,  was 
allowed;  and  the  following  reasons  were  assigned  for  setting  aside 
the  verdict:   1.  Because  an  action  on  the  case  will  not  lie  against  a 


786  MOORE   V.    TOWNSHEND.  [cHAP.  VL 

tenant  for  years  for  permissive  waste.  2.  Because  the  lease  between 
the  parties  measures  and  limits  the  liability  of  the  tenant,  in  the 
matter  of  repairs. 

Depue,  J.  The  action  on  the  case,  in  the  nature  of  waste,  has  al- 
most entirely  superseded  the  common  law  action  of  waste,  as  well 
for  permissive  as  for  voluntary  waste,  as  furnishing  a  more  easy 
and  expeditious  remedy  than  a  writ  of  waste.  It  is  also  an  action 
encouraged  by  the  courts,  the  recovery  being  confined  to  single 
damages,  and  not  being  accompanied  by  a  forfeiture  of  the  place 
wasted. 

At  common  law,  waste  lay  against  a  tenant  in  dower,  tenant  by 
the  curtes}^  and  guardian  in  chivalry,  but  not  against  lessees  for  life 
or  years.  2  Inst.  299,  305;  Co.  Litt.  54.  The  reason  of  this  diversity 
was,  that  the  estates  and  interests  of  the  former  were  created  by  the 
law,  and  therefore  the  law  gave  a  remedy  against  them,  but  the  latter 
came  in  by  the  act  of  the  owner  who  might  have  provided  in  his 
demise  against  the  doing  of  waste  by  his  lessee,  and  if  he  did  not, 
it  v/as  his  neghgence  and  default.  2  Inst.  299;  Doct.  &  Stu.,  ch.  1, 
p.  102.  This  doctrine  was  found  extremely  inconvenient,  as  tenants 
took  advantage  of  the  ignorance  of  their  landlords,  and  committed 
acts  of  waste  with  impunity.  To  remedy  this  inconvenience  the 
statute  of  Marlbridge  (52  Hen.  3,  ch.  23)  was  passed.  But  as  the 
recompense  given  by  this  statute  was  frequently  inadequate  to  the 
loss  sustained,  the  statute  of  Gloucester  (6  Edw.  1,  ch.  5)  increased 
the  punishment  by  enacting  that  the  place  wasted  should  be  recov- 
ered, together  with  treble  damages.  1  Cruise  Dig.  119,  §  25,  26; 
Sackett  v.  Sackett,  8  Pick.  p.  313,  per  Parker,  C.J.  The  statute  of 
Marlbridge  is  in  the  following  words:  "Also  fermors,  during  their 
terms,  shall  not  make  waste,  sale,  nor  exile  of  house,  woods,  and  men, 
nor  of  anything  belonging  to  the  tenements  that  they  have  to  ferm, 
without  special  license  had  by  writing  of  covenant,  making  mention 
that  they  may  do  it;  which  thing,  if  they  do  and  thereof  be  convict, 
thej^  shall  yield  full  damage,  and  shall  be  punished  by  amercement 
grievously."  2  Inst.  145.  The  word  fermer  (firmarii)  in  this  statute 
comprehended  all  such  as  held  b}'  lease  for  life  or  lives,  or  for  3-ears, 
by  deed  or  without  deed;  2  Inst.  145,  note  1;  and  also  de^^sees  for 
life  or  years.  2  Roll.  Abr.  826, 1.  35.  By  the  statute  of  Gloucester, 
"it  is  provided,  also,  that  a  man,  from  henceforth,  shall  have  a  writ 
of  waste,  in  the  Chancer}^,  against  him  that  holdeth  by  law  of  Eng- 
land or  otherwise,  for  term  of  life,  or  for  term  of  years,  or  a  woman 
in  dower.  And  he  which  shall  be  attainted  of  waste,  shall  lose  the 
thing  that  he  hath  wasted,  and,  moreoever,  shall  reoompence  thrice 
so  much  as  the  waste  shall  be  taxed  at.  And  for  waste  m.ade  in  the 
time  of  wardship,  it  shall  be  done  as  is  contained  in  the  great  char- 
ter." 2  Inst.  299.  At  the  common  law,  a  tenant  at  will  was  punish- 
able for  voluntary  waste,  but  not  for  permissive  waste.  Countess  of 


CHAP.  VI.]  MOORE    V.    TOWNSHEND.  737 

Salop  V.  Crompton,  Cro.  Eliz.  777,  784.  The  Countess  of  Shreivs- 
bunj's  Case,  5  Coke  24;  Harnett  and  Wife  v.  Maitland,  16  M.  &  W. 
258.  Tenants  in  dower,  by  the  curtesy,  for  life  or  lives,  and  for 
years,  were  included  in  the  statute  of  Gloucester.  Tenants  at  will 
were  always  considered  as  omitted  from  the  statute  of  Alarlbridge 
as  well  as  from  the  statute  of  Gloucester,  and,  therefore,  continued 
to  be  dispunishable  for  mere  permissive  waste,  and  punishable  for 
voluntary  waste  by  action  of  trespass  as  at  common  law.  The  rea- 
son of  this  exemption  of  tenants  at  will  from  liability  for  permissive 
waste,  was  the  uncertain  nature  of  their  tenure  which  would  make 
it  a  hardship  to  compel  them  to  go  to  any  expense  for  repairs.  Their 
exemption  from  the  highly  remedial  process  of  waste  provided  by 
the  statute  of  Gloucester,  is  attributable  to  the  fact  that  the  owner 
of  the  inheritance  might  at  any  time,  by  entry,  determine  the  estate 
of  the  tenant,  and  thus  protect  the  inheritance  from  spoil  or  destruc- 
tion. 

The  language  of  the  statute  of  Marlbridge  is,  "shall  not  make 
(non  facient)  waste,"  and  in  the  statute  of  Gloucester,  in  speaking 
of  guardians,  the  words  used  are,  "he  which  did  waste"  {que  avera 
fait  waste) .  The  settled  construction  of  these  statutes  in  the  English 
law  until  a  comparatively  recent  period  was,  that  they  included  per- 
missive waste  as  well  as  voluntary  waste.  In  a  note  in  exposition  of 
the  statute  of  Marlbridge,  Lord  Coke,  in  commenting  on  the  words 
''non  facient,^'  says:  "To  do  or  make  waste,  in  legal  understanding 
in  this  place,  includes  as  well  permissive  waste,  which  is  waste  by 
reason  of  omission  or  not  doing  as  for  want  of  reparation,  as  waste 
by  reason  of  commission,  as  to  cut  down  timber,  trees,  or  prostrate 
houses,  or  the  like ;  and  the  same  word  hath  the  statute  of  Gloucester, 
ch.  5,  que  avera  fait  waste,  and  yet  is  understood  as  w^ell  of  passive  as 
active  waste,  for  he  that  suffereth  a  house  to  decay  which  he  ought 
to  repair,  doth  the  waste."  2  Inst.  145;  7  Bac.  Abr.  250;  3  Bl.  Com. 
225;  2  Saund.  252;  4  Kent  76.  So  under  the  prohibition  to  do  waste, 
the  tenant  is  held  to  be  bounden  for  the  waste  of  a  stranger,  though 
he  assented  not  to  the  doing  of  waste.  Doct.  &  Stu.,  ch.  4,  p.  113; 
2  Inst.  303;  Fay  v.  Brewer,  3  Pick.  203;  1  Washburn  R.  Prop.  116. 
It  is  common  learning  that  every  lessee  of  land,  whether  for  life  or 
years,  is  liable  in  an  action  of  waste  to  his  lessor,  for  all  waste  done 
on  the  land  in  lease  by  whomsoever  it  may  be  committed,  per  Heath, 
J.,  in  Attersoll  v.  Stevens,  1  Taunt.  198;  with  the  exception  of  the 
acts  of  God,  public  enemies,  and  the  acts  of  the  lessor  himself. 
White  v.  Wagner,  4  Harr.  &  Johns.  373;  4  Kent  77;  Heydon  and 
Smith's  Case,  13  Coke  69.  The  instances  in  the  earlier  reports  in 
which  lessees  for  life  or  years  were  held  liable  for  permissive  waste, 
which  consisted  in  injuries  resulting  from  acts  of  negligence  or  omis- 
sion, are  quite  frequent;  and  their  liability  is  grounded,  not  on  the 
covenants  or  agreements  in  the  instruments  of  demise,  but  on  the 


738  MOORE    V.    TOWNSHEND.  [cHAP.  VL 

statute,  which  subjected  them  to  the  action  of  waste.  Griffith's  Case, 
Moore  69,  No.  187;  76.  62,  No.  173;  lb.  73,  No.  200;  Keilway  206; 
Darcij  V.  Askwith,  Hobart,  234;  Glover  v.  Pipe,  Owen  92;  3  Dyer  281 ; 
2  Roll.  Abr.  816, 1.  40;  22  Yin.  Abr.  Waste,  "c"  and  "d,"  pp.  436-440, 
443;  Co.  Litt.  52  a,  53  6;  5  Com.  Dig.  Waste,  d  2,  d  4;  Bissett  on 
Estates,  299,  300.  So  unifonnly  had  the  courts  determined  that  les- 
sees for  life  or  years  had  committed  waste  by  the  application  of  the 
common  law  rules,  with  respect  to  waste,  whether  of  omission  or 
corn-mission,  that  the  learned  commentator  on  Enghsh  law  says, 
"that  for  above  five  hundred  years  past,  all  tenants  m.erely  for  life, 
or  for  any  less  estate,  ha,ve  been  i^unishable  or  liable  to  be  impeached 
for  waste,  both  voluntary  and  permissive;  unless  their  leases  be  made, 
as  sometimes  they  are,  without  impeachment  of  waste."  2  Bl.  Com. 
283. 

This  construction  of  the  statutes  of  Marlbridge  and  Gloucester 
continued  to  be  received  without  dissent  until  the  decision  of  the 
case  of  Gibson  v.  Wells,  4  B.  &  P.  290,  in  the  year  1805,  which  was 
followed  by  the  case  of  Heme  v.  Bembow,  4  Taunt.  764  (1813). 
These  cases  it  is  insisted  have  settled  the  construction  against  the 
liability  of  a  tenant  for  years  for  permissive  waste.  Gibson  v.  Wells 
is  not  an  authority  for  this  position.  The  tenant  against  whom  the 
action  there  was  brought  was  a  tenant  at  will,  who  is  not  included 
within  the  statutes,  and  who,  at  common  law,  was  punishable  for 
voluntary,  but  not  for  permissive  waste.  In  Herne  v.  Bembow,  it 
does  not  clearly  appear  that  the  lease  was  for  a  term.  It  is  certain 
that  the  opinion  of  the  court  proceeded  upon  the  principles  appli- 
cable to  tenants  at  will.  As  the  case  is  reported  in  Taunton,  it  ap- 
pears to  have  been  decided,  without  argument  or  consideration. 
The  opinion  is  a  per  curiam  opinion,  and  the  only  case  cited  is  the 
Countess  of  Shrewsbury's  Case,  5  Co.  24,  which  was  a  case  of  a  ten- 
ancy at  will. 

The  only  subsequent  case  which  sustains  these  cases  is  Torriano 
v.  Young,  6  C.  &  P.  8;  a  case  at  nisi  prius.  In  other  cases  where 
Herne  v.  Bembow  was  cited,  the  English  courts  show  no  disposition 
to  follow  it.  In  Jones  v.  Hill,  7  Taunt.  392,  Gibbs,  C.J.,  expressly 
guards  himself  against  being  supposed  to  concur  in  the  position  that 
an  action  will  not  lie  against  a  lessee  for  years  for  permissive  waste. 
In  Martin  v.  Gilham,  7  A.  &  E.  540,  and  in  Beale  v.  Sanders,  3  Bing. 
N.C.  850,  a  decision  of  that  question  is  avoided;  and  in  Harnett  v. 
Maitland,  16  M.  &  W.  256,  261,  Parke,  B.,  on  Gibson  v.  Wells, 
Herne  v.  Bembow,  and  Torriano  v.  Young  being  cited,  intimates  an 
opinion  against  those  cases  as  necessarity  invohdng  the  result  that  a 
tenant  for  life  is  also  dispunishable  for  permissive  waste.  Text  writers 
of  acknowledged  authority  have  not  recognized  these  cases  as  set- 
tling the  law  against  the  older  cases  and  the  opinions  of  Coke  and 
Blackstone,  but  have  regarded  them  as  merely  throwing  a  doubt 


CHAP.  VI.]  MOORE    V.    TOWNSHEND.  739 

upon  a  principle  that  had  previously  been  set  at  rest.  2  Saund.  252  b, 
note  i;  Arch.  L.  &  T.  196, 7;  Smith  on  L.  &  T.  196;  Com>ai  on  L.  &  T. 
495,  and  note  e;  2  Bouvier's  Law  Diet.  645,  Waste,  §  14;  1  Washburn 
on  R.  Prop.  124,  and  note  1.  By  other  legal  writers  they  are  doubted 
or  condemned  as  unsound  in  principle.  Roscoe  on  Real  Actions  385 ; 
Ferrard  on  Fixtures  278,  281,  note;  1  Evans'  Statutes  193,  note; 
Broom  on  Parties  257;  4  Kent  76,  79;  Elmes  on  Dilapidations  257. 

Independent  of  authority,  the  true  construction  of  the  statute  of 
Gloucester  leads  to  the  conclusion  that  tenant  for  life  or  years  was 
made  liable  for  pennissive  as  well  as  voluntary  waste.  Before  either 
this  act  or  the  statute  of  Marlbridge  was  passed,  waste  was  recog- 
nized in  the  law,  as  an  injury  to  the  inheritance,  resulting  either 
from  acts  of  com.mission  or  of  omission.  Neither  of  these  statutes 
created  new  kinds  of  waste,  but  gave  a  new  remedy  for  old  wastes, 
leaving  what  was  waste,  and  what  not,  to  be  determined  by  the  com- 
mon law;  2  Inst.  300;  and  by  the  statute  of  Gloucester  the  writ  of 
waste  was  suable  out  of  cha^ncery  as  well  against  lessee  for  life  or 
years,  as  against  tenant  by  the  curtesy,  or  in  dower,  putting  the 
former,  as  to  the  newly  created  remedy,  on  the  same  footing  as  the 
latter.  "It  hath  been  used  as  an  ancient  maxim  in  the  law,  that 
tenant  by  the  curtesy,  and  the  tenant  in  dower,  should  take  the  land 
with  this  charge,  that  is  to  say,  that  they  should  do  no  waste  them- 
selves, nor  suffer  none  to  be  done;  and  when  an  action  of  waste  was 
given  after,  against  a  tenant  for  term  of  life,  then  he  was  taken  to 
be  in  the  same  case,  as  to  the  point  of  waste  as  tenant  by  the  curtesj^ 
and  tenant  in  dower  was,  that  is  to  say,  that  he  should  do  no  waste, 
nor  suffer  none  to  be  clone."  Doct.  &  Stu.,  ch.  4,  p.  113.  No  distinc- 
tion can  be  made  between  lessee  for  life  and  lessee  for  years.  Both  are 
mentioned  in  the  statute  conjointly;  and  each  derives  his  interest 
in  the  premises  from  the  act  of  the  owner  of  the  inheritance. 

The  second  section  of  the  act  for  the  prevention  of  waste,  which  is 
in  force  in  this  state  (Nix.  Dig.,  4th  ed.,  1022),  provides  that  no  ten- 
ant for  life  or  years,  or  for  anj'  other  term,  shall  during  the  term  7nake 
or  suffer  any  waste,  sale  or  destruction  of  houses,  gardens,  orchards, 
lands,  or  woods,  or  anything  belonging  to  the  tenements  demised, 
without  special  license  in  writing,  making  mention  that  he  may  do 
it.  The  third  section  is  in  substance  the  same  as  the  statute  of 
Gloucester.  The  act  was  passed  in  1795.  The  use  of  the  words  ''make 
or  suffer,"  in  the  second  section,  which  are  equivalent  to  Coke's 
interpretation  of  facient  in  the  statute  of  Marlbridge,  manifests  an 
intent  to  adopt  as  the  law  of  this  state  the  doctrine  of  the  English 
courts,  as  to  the  liability  of  tenants  for  life  or  years  for  permissive 
waste,  which  was  universally  received  at  the  time  of  the  passage  of 
the  act. 

The  second  reason  assigned  involves  the  effect  of  the  lease  in  this 
action. 


740  MOORE    V.    TOWNSHEND.  [cHAP.  VI. 

Premising  that  the  act  or  omission,  to  constitute  waste  must  be 
either  an  invasion  of  the  lord's  property,  or  at  least  be  some  act  or 
neglect  which  tends,  materially,  to  deteriorate  the  tenement,  or  to 
destroy  the  evidence  of  its  identity;  (Burton's  Comp.  R.  Prop.  411; 
Doe  ex  dem.  Gruhb  v.  Earl  of  Burlington,  5  B.  &  Ad.  507;  2  Saund. 
259  a,  note  o;  Pynchon  v.  Stearns,  11  Met.  304;  1  Washburn  R. 
Prop.  108;)  and  that  the  action  is  founded  partly  upon  the  common 
law  and  partly  upon  the  statute,  and  does  not  depend  for  its  support 
on  any  covenants  of  the  tenant;  (22  Viner  Abr.  457,  Waste  M.  4;  3 
Bl.  Com.  227;  Kinlyside  v.  Thornton,  2  W.  Black.  1111;  Marker  v. 
Kenrich,  13  C.  B.  188;)  it  is  obvious  that  we  must  resort  to  the  stat- 
ute for  the  conditions  on  which  the  tenant  is  excusable  for  the  waste 
done. 

There  is  a  class  of  cases  in  which  tenants  have  been  held  not  to 
be  liable  for  waste  resulting  from  non-repair  where  the  lessor  has 
entered  into  a  covenant  to  make  the  repairs  for  the  want  of  which 
the  injury  has  happened.  These  cases  go  upon  the  ground  that  the 
injury  was  caused  by  the  lessor's  own  default,  on  which  he  can  base 
no  right  to  recover.  There  is  no  such  covenant  in  the  lease  now  under 
consideration. 

The  statute  forbids  waste  by  the  tenant  "without  special  license, 
in  writing,  making  mention  that  he  maj'  do  it."  The  consent  of  the 
landlord  by  parol  will  not  be  sufficient  authority.  McGregor  v.  Brown, 
6  Seld.  114.  The  words  usually  employed  for  this  purpose  are  "with- 
out impeachment  of  waste,"  but  any  words  of  equivalent  import 
will  be  sufficient,  provided  they  amount  to  a  license  to  do  the  acts. 
The  defendant,  to  bring  himself  within  the  statute,  relies  on  that 
part  of  the  lease  which  relates  to  the  re-delivery  of  the  personal 
property  leased,  in  connection  with  the  stipulation  giving  the  defend- 
ant the  privilege  of  expending  a  portion  of  the  rent  in  each  year  for 
repairs.  The  covenant  as  to  the  personal  property  is  entirely  distinct 
from  the  obligations  of  the  tenant,  with  respect  to  the  real  estate. 
The  privilege  of  expending  a  portion  of  the  rent  reserved  in  repairs 
is  not  a  license  to  the  tenant  to  omit  a  duty  put  upon  him  by  the 
statute,  growing  out  of  the  relations  between  the  parties.  To  con- 
strue a  privilege  given  by  the  landlord  to  expend  his  money  in  the 
reparation  of  the  demised  premises,  as  a  license  to  the  tenant  to  omit 
his  duty,  to  the  spoil  or  destruction  of  the  inheritance,  would  be  an 
entire  subversion  of  the  obvious  intent  of  the  landlord.  If  it  falls 
short  of  a  license  for  the  act  complained  of,  it  does  qualify  or  abridge 
the  obligations  of  the  tenant  which  exist  independent  of  the  pro\'i- 
sions  of  the  lease. 

It  was  further  insisted  that  if  any  action  lies,  it  should  be  an  action 
ex  contractu,  and  not  in  tort.  As  already  observed,  the  gravamen  of 
the  action  is  the  breach  of  a  statutorj^  duty.  An  action  on  the  case 
founded  in  tort  will  lie  for  the  breach  of  a  duty,  though  it  be  such  as 


CHAP.  VI.]        THE    COUNTESS   OF    SHEEWSBURy's   CASE.  741' 

that  the  law  will  imply  a  promise  on  which  an  action  ex  contractu 
may  be  maintained.  Brunell  v.  Lynch,  5  B.  &  C.  589.  To  the  same 
effect  are  the  cases  of  Kinlyside  v.  Thornton  and  Marker  v.  Kenrick, 
already  cited,  in  which  it  was  held  that  an  action  on  the  case  in  the 
nature  of  waste  will  lie,  although  the  act  complained  of  might  also 
be  the  subject  of  an  action  for  the  breach  of  an  express  covenant. 

Rule  discharged. 

Note. — See,  accord,  Suydam  v.  Jackson,  54  N.Y.  450;  Harnett 
V.  Maitland,  16  M.  &  W.  257;  Davies  v.  Davies,  L.R.  38  Ch.D.  499. 

The  courts  said  that  a  tenant  for  life  is  liable  for  permissive  waste 
in  Miller  v.  Shields,  55  Ind.  71,  77;  Wilson  v.  Edmonds,  24  N.H. 
517,  545;  Schulting  v.  SckuUing,  41  N.J.  Eq.  130,  132;  Stevens  v. 
Rose,  69  Mich.  259;  Sperrill  v.  Connor,  107  N.C.  630,  636;  Harvey 
V.  Harvey,  41  Vt.  373.  See,  contra,  In  re  Cartwright,  L.R.  41  Ch.D. 
532. 

A  tenant  from  year  to  year  was  held  liable  for  permissive  waste 
in  Newhold  v.  Brown,  44  N.J.  L.  266.  In  Long  v.  Fitzimmons, 
1  W.  &  S.  (Pa.)  530,  it  was  held  that  ''if  nothing  is  said  in  the  lease 
about  it,  the  tenant  is  bound  to  keep  the  premises  in  repair."  The 
tenancy  was,  apparently,  a  tenancy  from  year  to  year. 


THE  COUNTESS   OF  SHREWSBURY'S   CASE. 

5  Co.  24.     1600. 

The  Countess  of  Shrewsbury  brought  an  action  on  the  case  against 
Richard  Crompton,  a  lawyer  of  the  Temple,  and  declared,  that  she 
leased  to  him  a  house  at  will,  et  quod  ille  tarn  negligenter  et  im-provide 
custodivit  ignem  suum,  quod  domus  ilia  comhusta  fuit :  to  which  the 
defendant  pleaded  not  guilty,  and  was  found  guilty,  etc.  And  it  was 
adjudged  that  for  this  permissive  waste  no  action  lay,  against  the 
opinion  of  Brook  in  the  abridgment  of  the  case  of  48  E.  3,  25.  Wast. 
52.  And  the  reason  of  the  judgment  was,  because  at  the  common  law 
no  remedy  lay  for  waste,  either  voluntary  or  permissive  against  les- 
see for  life  or  years,  because  the  lessee  had  interest  in  the  land  by 
the  act  of  the  lessor,  and  it  was  his  folly  to  make  such  lease,  and  not 
restrain  him  by  covenant,  condition,  or  otherwise,  that  he  should 
not  do  waste.  So  and  for  the  same  reason,  a  tenant  at  will  shall  not 
be  punished  for  permissive  waste.  But  the  opinion  of  Littleton  is 
good  law,  fol.  (15)  152.  If  lessee  at  will  commits  voluntary  waste, 
sail,  in  abatement  of  the  houses,  or  in  cutting  of  the  woods,  there  a 
general  action  of  trespass  lies  against  him.  For  as  it  is  said  in  2  and 
3  Phil.  &  Mar.  Dyer  122  b,  when  tenant  at  will  takes  upon  him  to 
do  such  things  which  none  can  do  but  the  owner  of  the  land,  these 


742  EARLE    V.    ARBOGAST.  [CHAP.  YI. 

amount  to  the  determination  of  the  will,  and  of  his  possession,  and 
the  lessor  shall  have  a  general  action  of  trespass  without  any  entry : 
and  there  15  E.  4,  20  b,  is  cited,  that  if  a  bailee  of  goods  as  of  a  horse, 
etc.,  kill  them,  the  bailor  shall  have  a  general  action  of  trespass,  for 
by  the  killing  the  privity  was  determined.  But  it  was  agreed  that  in 
some  cases,  when  there  is  a  confidence  reposed  in  the  party,  the  ac- 
tion upon  the  case  will  lie  for  negligence,  although  the  defendant 
comes  to  the  possession  by  the  act  of  the  plaintiff.  As  12  E.  4,  13 
a,  b,  where  a  man  delivers  a  horse  to  another  to  keep  safe,  the  de- 
fendant equum  ilium  tarn  negligenter  custodivit,  quod  oh  defectum  bonce 
custodicB  interiit ;  the  action  on  the  case  lies  for  this  breach  of  the 
trust.  So  2  H.  7,  11,  if  my  shepherd,  whom  I  trust  with  my  sheep, 
and  by  his  negligence  they  be  drowTied,  or  otherwise  perish,  an  action 
upon  the  case  lies :  but  in  the  case  at  bar  it  was  a  lease  at  will  made 
to  the  defendant,  and  no  confidence  reposed  in  him;  wherefore  it  was 
awarded,  that  the  plaintiff  take  nothing  by  her  bill. 

Note.  —  See,  accord,  Lothrop  v.  Thayer,  138  Mass.  466, 473.  "The 
reasoning  of  the  old  cases  is  undoubtedly  technical,  but  they  were 
decided  with  full  knowledge  that  an  action  lay  for  an  injury  to  a 
personal  chattel,  caused  by  the  neghgent  keeping  of  the  bailee." 


EARLE  V.   ARBOGAST. 

180  Pa.  409.     1897. 

At  the  trial  it  appeared  that  the  premises  in  question  had  been 
leased  by  the  plaintiff  to  the  defendants  by  parol  for  one  year,  with 
no  agreement  to  repair  or  to  deliver  the  premises  in  good  order  and 
condition  at  the  end  of  the  term.  The  property  had  been  used  by 
the  lessor  as  a  soap  factory,  and  this  use  was  continued  by  the  defend- 
ants. The  only  new  appliance  which  the  defendants  used  was  a  ren- 
dering tank  which  exploded  and  caused  the  injuries  for  which  suit 
was  brought.  It  was  claimed  by  the  plaintiff  that  the  explosion  was 
caused  by  the  vent  pipe  of  the  tank  becoming  clogged.  It  was  also 
averred  by  him  that  the  tank  was  not  strong  enough  to  withstand 
the  pressure  of  steam  that  was  put  upon  it. 

Opinion  by  IVIr.  Justice  Fell.  Generally  in  the  absence  of  an 
express  covenant  on  the  subject  the  law  implies  a  covenant  on  the 
part  of  the  lessee  so  to  treat  the  demised  premises  that  they  may 
revert  to  the  lessor  unimpaired  except  by  usual  wear  and  tear,  and 
uninjured  by  any  wilful  or  negligent  act  of  the  lessee.  The  implied 
covenant  does  not,  however,  extend  to  the  loss  of  buildings  by  fire, 
flood  or  tempest,  or  enemies,  which  it  was  not  in  the  power  of  the 
lessee  to  prevent,  and  there  is  no  implied  covenant  that  the  lessee 


CHAP.  VI.]  EARLE  V.    ARBOGAST.  743 

shall  restore  buildings  which  have  been  destroyed  by  accident  without 
fault  on  his  part:  Jackson  and  Gross'  Landlord  and  Tenant,  in  Penn- 
sylvania, sees.  964,  965;  Taylor's  Landlord  and  Tenant,  sec.  343; 
Cooley  on  Torts,  p.  335;  Long  v.  Fitzimmons,  1  W.  &  S.  530;  United 
States  V.  Bostwick,  94  U.S.  53. 

Tenants  by  the  curtesy  and  in  dower  were  responsible  at  common 
law,  and  tenants  for  life  and  for  years,  whose  estates  were  created  by 
the  acts  of  the  parties,  were  responsible  under  statute  as  for  permis- 
sive waste  until  reheved  by  the  statute  of  6  Anne,  chap.  31,  where 
the  property  was  destroyed  by  unavoidable  accident,  not  the  act  of 
God  or  the  pubHc  enemy.  The  statute  of  6  Anne,  chap.  31,  which 
relieved  the  tenant  from  liability  for  the  consequences  of  accidental 
fires  has  never  been  in  force  in  this  state,  and  it  has  been  formally 
adopted  by  few  if  any  of  the  other  states,  except  New  Jersey.  Chan- 
cellor Kent,  4  Kent's  Com.  82,  says:  "Perhaps  the  universal  silence 
of  our  courts  upon  the  subject  of  any  such  responsibility  of  the  teuant 
for  accidental  fires  is  presumptive  evidence  that  the  doctrine  of  per- 
missive waste  has  never  been  introduced  and  carried  to  that  extent 
in  the  common  law  jurisprudence  of  the  United  States."  In  U.S,.  v. 
Bostwick,  supra,  it  was  held  that  the  implied  covenant  of  the  tenant 
is  not  to  repair  generally,  but  so  to  use  the  property  as  to  make  re- 
pairs unnecessary  as  far  as  possible,  and  that  it  is  a  covenant  against 
voluntary  waste  only.  It  is  said  m  the  opinion  by  Waite,  C.J.:  "It 
has  never  been  so  construed  as  to  make  a  tenant  answerable  for  acci- 
dental damages  nor  to  bind  him  to  rebuild  if  the  buildings  are  burned 
down  or  otherwise  destroyed  by  accident."  The  statement  in  the 
opinion  in  Lojig  v.  Fitzimmons,  supra,  that  a  tenant,  where  there  is  no 
covenant  to  that  effect,  is  not  bound  to  restore  buildings  that  have 
been  burned  down  or  become  ruinous  by  other  accident  without 
default  on  his  part  may  be  a  dictum  only,  but  it  is  in  harmony  with 
the  trend  of  decisions  of  the  courts  of  other  states  and  of  the  federal 
courts,  and  it  has  been  accepted  and  acted  upon  by  the  courts  of  this 
state,  and  it  is  a  correct  statement  of  the  law. 

There  could  be  no  recovery  without  proof  of  the  defendants' 
neghgence,  and  the  burden  of  proof  rested  upon  the  plaintiff.  The 
lease  was  in  pai'ol,  for  one  year,  with  no  agreement  to  repair  or  to 
deliver  the  premises  in  good  order  and  condition  at  the  end  of  the 
term.  No  new  or  different  use  was  made  of  the  building  by  the  ten- 
ants. It  was  used  by  them  for  the  pui-pose  for  which  it  had  been 
leased,  and  for  which  it  had  been  fitted  with  machinery  and  used  by 
the  lessor.  The  only  new  appliance  used  was  the  rendering  tank 
which  exploded.  In  the  use  of  the  property  leased  the  defendants 
were  under  an  implied  duty  not  to  negligently  injure  it.  The  stand- 
ard of  their  duty  was  reasonable  care.  The  mere  fact  of  the  explosion 
did  not  throw  upon  them  the  burden  of  proving  that  they  were  not 
negligent.  The  burden  of  proof  was  with  the  plaintiff  throughout  the 


744  WHITE    V.    WAGNER.  [CHAP.  VI. 

trial.  He  was  not  bound  in  the  first  instance  to  prove  more  than 
enough  to  raise  a  presumption  of  negligence  on  the  part  of  the  de- 
fendants. Proof  of  the  explosion  and  of  the  attendant  circumstances 
might  have  furnished  sufficient  ground  for  a  reasonable  inference  of 
negligence  to  have  made  out  a  prima  Jade  case,  but  he  could  not  rest 
his  case  upon  a  bare  presumption  based  only  upon  the  fact  that  the 
explosion  occurred. 

Note.  —  A  tenant  is  not  answerable,  merely  because  he  is  tenant, 
for  the  destruction  of  buildings  on  the  land  by  accidental  fires. 
Wainscott  v.  Silvers,  13  Ind.  497;  Levey  v.  Dyess,  51  Miss.  501; 
Sampson  v.  Grogan,  21  R.I.  174;  Maggort  v.  Hansbarger,  8  Leigh 
(Va.)  532;  U.S.  v.  Bostunck,  94  U.S.  53. 

See  also  Maclien  v.  Hooper,  73  Md.  342,  for  a  consideration  of  the 
question  whether  a  tenant  is  Hable  for  a  loss  not  occasioned  by  his 
negligence. 


WHITE  V.  WAGNER. 

4  Har.  &  J.  (Md.)  373.     1818. 

Action  of  trespass  on  the  case,  in  the  nature  of  waste. 

At  the  trial  it  was  admitted  that  the  defendant  was  tenant  of  the 
premises  in  question,  as  a  dwelling-house,  under  the  plaintiff,  for  a 
year,  at  the  rent  of  S350,  and  that  no  covenants  or  agreements  were 
entered  into  by  the  parties  relative  to  repaii-s  of  the  premises,  or 
other  matters  relating  thereto,  other  than  such  as  are  implied  by 
law,  except  merely  the  agreement  to  let  the  premises  by  the  plaintiff 
to  the  defendant  for  a  year,  and  by  the  defendant  to  pay  the  said 
rent.  That  the  defendant  entered  into  possession  some  time  in  the 
month  of  Ma}^,  1812,  and  continued  therein  until  the  27th  of  June  of 
the  same  year,  when  a  large  armed  multitude  of  unknown  persons, 
being  residents  of  the  city  of  Baltimore,  or  of  this  state,  assembled 
and  combined  themselves  together  in  the  said  city  for  the  purpose  of 
pulling  down  the  said  house,  and  compelhng  the  defendant  to  desist 
from  the  distribution  of  a  newspaper  called  The  Federal  Republican, 
and  to  drive  the  defendant  from  the  said  cit3^  That  the  mayor  of  the 
city,  the  judges  of  the  court  of  oyer  and  terminer  and  gaol  dehvery 
for  Baltimore  County,  and  other  civil  officere  of  the  said  city  and 
county,  being  informed  of  this  combination  and  assemblage  of  an 
armed  multitude,  and  the  purposes  for  which  they  were  so  assembled, 
did,  by  all  such  ways  and  means  as  they  deemed  best  calculated, 
from  the  powers  they  possessed,  endeavour  to  prevent  and  hinder  the 
said  multitude  from  perpetrating  their  milawful  and  outrageous  pur- 
poses as  aforesaid;  but  in  spite  of  all  the  efforts  of  the  said  civil  offi- 


CHAP.  VI.]  WHITE    V.    WAGNER.  745 

cers,  and  by  a  power  wholly  incontroUable  and  irresistible  by  the  said 
officers,  or  by  the  defendant,  the  said  armed  multitude  did  compel 
the  defendant,  and  his  family,  for  the  safety  of  then-  lives,  to  fly  from 
and  abandon  said  house  and  premises,  and  from  the  said  city,  and 
did  ruin,  spoil,  and  destroy  said  house,  in  the  manner  as  stated  in  the 
declaration.  The  plaintiff  then  offered  evidence  to  prove,  that  after 
the  defendant  took  possession  of  the  said  house,  he  used  it  for  the 
purpose  of  receiving  therein  a  newspaper  called  The  Federal  Republi- 
can, which  was  printed  in  George  Town,  in  the  District  of  Columbia, 
of  which  the  defendant  was  an  editor  and  proprietor,  and  from  thence 
to  distribute  the  same  to  the  subscribers  to  the  said  paper,  who  re- 
sided in  the  city  of  Baltimore ;  and  ha\dng  reason  to  believe  that  the 
said  house  would  be  attacked  by  a  lawless  armed  and  unknown  mul- 
titude, if  the  said  paper  was  received  and  distributed  therefrom,  he 
collected,  in  a  peaceable  and  lawful  manner,  a  number  of  armed  m.en 
for  the  purpose  of  defending  the  said  house  against  any  attack  which 
might  be  made  thereon  by  the  said  unknown  multitude  as  aforesaid ; 
and  that  it  was  after  the  introduction  of  the  said  armed  m.en  to 
defend  the  house,  and  the  commencement  of  the  distribution  afore- 
said therefrom,  that  the  said  armed  multitude,  as  herein  before 
stated,  attacked,  ruined  and  spoiled  the  house.  To  the  admission  of 
which  said  evidence,  under  the  present  declaration,  the  defendant 
objected.  But  the  court  [Bland  and  Hanson,  A.J.]  overruled  the 
objection,  and  permitted  the  whole  of  said  testimony  to  be  given  to 
the  jury.  The  defendant  excepted. 

The  defendant  then  moved  the  court  to  direct  the  jury,  that  if 
they  believed  the  facts  so  admitted  and  given  in  evidence,  then 
the  plaintiff  was  not  entitled  to  recover.  Which  opinion  and  direc- 
tion the  court  [Dorsey,  Ch.J.]  gave  to  the  jury.  The  plaintiff  ex- 
cepted; and  the  verdict  and  judgment  being  against  her,  she  ap- 
pealed to  this  court. 

Johnson,  J.  The  action  in  this  case  was  brought  in  Baltimore 
County  Court,  to  recover  damages  for  a  dwelling-house  on  Charles 
Street,  in  the  city  of  Baltimore,  which  was  materially  injured  during 
the  time  it  was  let  by  the  plaintiff  to  the  defendant. 

The  facts  as  they  present  themselves  on  the  bill  of  exceptions  are : 
[He  here  stated  the  case.] 

The  declaration  contains  two  counts,  the  one  an  action  on  the  case 
in  the  nature  of  waste,  the  other  on  an  implied  undertaking  to  restore 
the  property  in  good  tenantable  repair,  alleging  as  the  breach  the 
destruction  of  the  property  by  the  defendant. 

Actions  of  the  present  nature  have  been  seldom  if  ever  brought  in 
this  state;  indeed  a  transaction  similar  to  the  present  never  before, 
and  it  is  greatly  to  be  deplored  ever  did,  and  it  is  hoped  never  will 
arise  again,  in  which  private  property  has  been  by  force  destroyed 
against  the  exertions  of  the  civil  authority,  collected  on  the  spur  of 


746  WHITE    V.    WAGNER.  [cHAP.  VI. 

the  occasion  for  its  preservation.  But  as  the  property  has  been  de- 
stroyed, as  between  the  landlord  and  tenant,  the  question  is,  Who 
must  bear  the  burden  of  the  loss? 

In  forming  an  opinion  on  the  present  subject  it  is  not  necessary  to 
trace  the  law  of  waste,  as  it  existed  at  common  law,  or  as  changed  by 
the  statutes  of  Marlbridge  and  of  Gloucester;  it  is  sufficient  to  ob- 
serve, that  those  statutes  make  a  lessee  Jor  years  liable  to  the  action  of 
waste,  in  which,  when  determined  agauist  the  tenant,  he  forfeited  the 
place  wasted,  and  was  compelled  to  pay  treble  damages. 

Waste,  vastum,  is  a  spoil  or  destruction  in  houses,  etc.,  to  the  dis- 
herison of  him  that  hath  the  remainder  or  reversion  in  fee  simple  or 
fee  tail.  The  removing  wainscot  floors,  or  other  thmgs  once  fixed  to 
the  freehold,  is  waste.  Co.  Litt.  53.  4  Rep.  64.  2  Blk.  281. 

Waste  is  voluntary,  a  crime  of  commission,  as  pulling  down  a  house; 
or  permissive,  which  is  matter  of  omission  only,  as  by  suffering  it  to 
fall  for  necessary  repairs. 

If  the  property  in  question  had  been  destroyed,  as  set  forth  in  the 
plaintiff's  claim,  by  the  defendant  himself,  or  by  others  at  his  instance, 
it  is  clear  he  made  himself  liable  to  an  action  of  waste;  wherein  not 
only  would  have  been  recovered  the  house  let  (supposing  the  lease 
not  expired),  but  treble  damages.  The  injury  done  to  the  property 
would  have  assumed  the  denomination  of  wilful  waste.  But  as  the 
destruction  was  not,  in  the  common  acceptation  of  the  term,  made 
by  himself,  or  by  others  at  his  instance,  is  he  liable? 

It  is  not  novel  in  the  law  to  make  persons,  morally  innocent,  re- 
sponsible for  the  acts  of  those  over  whom  they  had  no  control.  In 
various  instances,  where  the  property  of  the  owner  is  placed  in  the 
care  of  another,  such  person  is  liable  to  the  owner  for  its  loss,  or  for 
injuries  done  to  it,  which  the  possessor  could  not  restrain. 

The  common  carrier,  the  inn-keeper,  the  sheriff,  and  others  not 
thought  material  to  enumerate,  are  responsible  for  losses  which  they 
could  not  prevent.  They  stand  liable  to  the  owner  for  all  losses, 
whether  sustained  by  highway  robbers,  or  others,  no  matter  how 
incontrollable  and  irresistible  may  be  the  force  with  which  they  are 
assailed.  The  act  of  God,  and  of  the  public  enemies,  will  onlj^  free 
them  from  the  demand,  when  the  loss  proceeded  from  such  act 
or  such  enemies,  and  then  only  when  they  are  free  from  every 
exception. 

If  the  law  was  otherwise,  by  conniving  with  the  robbers  and 
thieves,  no  property  could  be  safe  in  their  custody;  it  would  scarcely 
ever  be  in  the  owner's  power  to  ascertain  whether  the  loss  was  the 
result  of  concert,  or  of  force  —  whether  the  alleged  attack  might  or 
might  not  have  been  resisted.  To  free  them  from  all  temptation  to 
swerve  from  their  duty,  and  to  secure  an  effectual  remedy  to  those 
who  intrust  them  with  their  property,  all  excuses  of  the  kind  spoken 
of  are  precluded;  for  it  is  better  that,  occasionally,  the  loss  should  fall 


CHAP.  VI.]  WHITE    V.    WAGNER.  747 

on  an  innocent  person,  than  to  relax,  and  in  effect,  to  defeat  all 
liability. 

At  the  common  law  all  such  as  were  liable  to  the  action  of  waste, 
no  matter  what  might  be  their  situation,  no  matter  what  might  be 
the  power  to  repel  the  waste  from  being  done,  if  it  was  committed, 
they  were  bound  to  respond.  The  infant  age  of  the  tenant  would  not 
free  him  from  the  responsibility.  Under  the  statutes  of  Marlbridge 
and  Gloucester,  the  same  habilities  are  cast  on  the  tenant  for 
years. 

The  defendant,  in  the  case  before  the  court,  comes  within  the  pur- 
view of  those  statutes,  and  must  therefore  be  responsible,  unless  the 
overwhelming  force,  by  which  the  injuiy  was  done,  exonerates 
him. 

As  the  property  of  the  landlord  is  placed  in  the  tenant's  possession, 
who  has  the  legal  power  to  prevent  all  waste  from  being  done  to  it, 
and  to  recover  for  it,  when  committed,  as  in  most  instances  it  would 
be  impossible  for  the  landlord  to  ascertain  in  time,  or  come  at  the 
wrongdoer,  it  appears  to  have  been  the  policy  of  the  law  to  cast  the 
liability  on  the  part  of  the  tenant  for  all  waste  committed  on  the 
property,  except  when  caused  by  the  act  of  God,  or  of  the  King's 
enemies.  But  let  it,  for  argument's  sake,  be  conceded,  that  if  the 
defendant  had  continued  to  use  the  house  for  the  purpose  it  was  let 
to  him,  and  that  whilst  so  used,  the  lawless  multitude  attacked  and 
destroyed  it,  that  he  would  not  have  been  liable,  a  point  not  necessary 
to  he  determined  in  this  case;  yet  as  he  did  of  his  own  authority,  without 
the  consent  of  the  plaintiff,  divert  the  house  to  a  totally  different  and 
much  more  dangerous  purpose,  well  aware  of  the  risk  which  the 
property  would  thereby  have  to  encounter,  on  principles  of  law  and 
justice,  as  between  him  and  the  plaintiff,  he  becomes  responsible  for 
the  consequences. 

If  the  common  carrier,  who  puts  to  sea  during  a  storm,  or  on  its 
approaching,  cannot  exonerate  himself  from  the  loss  the  storm,  may 
produce,  which  he  attempted  to  buffet,  so  it  appears  equally  just 
that  a  tenant,  who  applies  the  property  to  a  different  pui-pose  than  it 
was  let  to  him,  aware  of  the  great  increase  of  risk,  in  consequence  of 
such  diversion,  must  hear,  and  not  cast  the  responsibility  on  the 
landlord.  My  opinion,  therefore,  is,  that  on  principles  of  law  and 
justice,  the  merits  of  the  case  are  with  the  plaintiff. 

The  action  of  waste  appears  to  have  given  way  to,  or  been  super- 
seded by,  the  action  on  the  case  in  nature  of  waste,  which  is  the  first 
count  in  the  present  declaration.  Two  grounds  have  been  relied  on 
against  the  first  count :  — 

1st.  That  the  evidence  docs  not  support  the  count;  and 

2d.  That  if  the  defendant  was  liable,  yet  as  the  waste  was  permis- 
sive, and  not  voluntary,  an  action  on  the  case,  in  the  nature  of  waste, 
will  not  lie. 


748  WHITE    V.    WAGNER.  [CHAP.  VL 

The  declaration,  it  is  true,  states  the  destruction  of  the  property 
to  have  been  made  by  the  defendant,  and  by  those  taken  mto  the 
house  by  him. 

In  common  parlance  a  person  cannot  be  said  to  have  done  an  act 
which  was  done  by  another;  nor  can  he  be  charged  with  causing  a 
destruction  to  take  place  when  every  exertion  in  his  power  was  used 
to  prevent  it.  But  in  the  legal  acceptation  of  the  charge,  he  who  does 
certain  acts,  by  others,  is  said  to  have  done  them  himseK,  Qui  facit 
per  alium  facit  per  se.  If  the  tenant  is  generally  responsible  for  all 
waste  committed  by  strangers,  no  matter  how  overwhelming  the 
power,  how  much  more  strong  is  the  case  before  the  court,  when  the 
property  in  question  was  applied  to  a  different  object  than  that  for 
which  it  was  let ;  the  defendant  having  reason  to  beUeve  that  in  con- 
sequence of  such  application  "  the  house  would  be  attacked  by  a  law- 
less armed  and  unknown  multitude."  —  As,  between  the  plaintiff 
and  defendant,  the  acts  of  the  multitude  produced  by  the  acts  of 
the  defendant  and  those  in  concert  with  him,  must  be  imputable 
to  the  defendant  himself,  of  course  the  charge,  as  contained  in  the 
count,  is  correct. 

The  second  objection  to  the  count  by  the  preceding  reasoning  is 
also  removed;  for,  if  the  defendant  is  to  be  liable  as  of  himseK,  for 
the  waste  committed  by  the  lawless  multitude,  then  it  follows  that 
the  destruction  to  the  property  in  question  comes  strictly  under  the 
denomination  of  voluntary  waste,  for  which  no  doubt  is  entertained 
but  that  the  present  action  is  applicable.  It  would  then  appear  that 
there  is  no  need  to  form  an  opinion,  whether  the  action  on  the  case, 
in  the  nature  of  waste,  will  or  will  not  lie  for  permissive  waste;  but 
the  inclination  of  my  mind  is,  that  that  action  will  be  sustained  as 
well  for  the  one  as  for  the  other  description  of  waste.  It  is  a  form  of 
action,  long  since  introduced,  to  recover  for  such  injuries;  it  is  an 
equitable  action,  and  ought  not  to  be  discountenanced;  it  confines 
the  recovery  to  the  real  loss  sustained ;  and  I  see  no  reason  to  say  that 
it  will  not  lie  in  all  cases,  and  against  all  persons,  who  are  at  com- 
mon law,  or  under  the  statutes  of  Marlbridge  and  Gloucester,  made 
liable  to  the  action  of  waste. 

As  the  case  is  covered  by  the  first  count  in  the  declaration,  I  deem  it 
totally  unnecessary  to  add  whether  the  evidence  sustains  the  second. 

The  opinion  of  the  court  below,  as  pronounced  on  the  second  bill 
of  exceptions,  is  erroneous,  and  the  judgment  obtained  in  conse- 
quence thereof  is  reversed. 

Martin,  J.,  dissented. 

Judgment  reversed,  and  procedendo  awarded. 


CHAP.  VL]  BEWICK    V.    WHITFIELD.  7i9 

FAY  V.  BREWER. 

3  Pick.  (Mass.)  203.     1825. 

Action  on  the  case  in  the  nature  of  waste,  for  cutting  down  trees. 

The  defendant  offered  to  prove  that  the  trees  were  cut  down  by 
other  persons,  mere  trespassers,  without  his  consent  or  knowledge. 

Per  Curiam.  It  is  clear  that  a  tenant  for  life  is  bound  to  see 
that  trespassers  do  not  injure  the  estate,  and  for  this  purpose  the 
law  gives  him  an  action  of  trespass.  So  that  whether  waste  is  com- 
mitted by  himseK  or  by  a  stranger,  he  is  alike  answerable  to  the 
reversioner. 

Note.  —  See,  accord,  Cargill  v.  Sewall,  19  Me.  288,  291;  Wood  v. 
Griffin,  46  N.H.  230;  Dix  v.  Jaquay,  94  N.Y.  App.  Div.  554  (citing 
previous  New  York  cases);  Regan  v.  Luthy,  16  Daly  (N.Y.)  413  (a 
tenant  removed  from  the  house,  and  securely  closed  the  premises, 
but  shortly  thereafter  the  plumbing  was  cut  out  and  stolen  by  per- 
sons unknown) ;  Powell  v.  Dayton  R.R.  Co.,  16  Or.  33  (lessee  liable 
for  acts  done  while  its  property  was  in  the  hands  of  a  receiver); 
Parrott  v.  Barney,  Fed.  Cas.  10773  a. 

Cf.  Winfree  v.  Jones,  104  Va.  39.  The  tenant  removed  from  the 
leased  house.  "The  house  was  entered  and  burned  by  some  one 
unknown  to  the  plaintiff  three  weeks  after  it  was  vacated."  The 
tenant  was  held  not  Hable,  even  though  he  had  not  secm-ely  fastened 
the  doors  on  leaving. 

A,  tenant  in  dower,  assigned  her  estate  to  B,  and  B  committed 
waste.  A  was  held  not  liable.  Foot  v.  Dickinson,  2  Met.  (Mass.)  611. 


BEWICK  V.  WHITFIELD. 

3  P.  Wms.  267.     1734. 

A  WAS  tenant  for  life,  remainder  to  B  in  tail,  as  to  one  moiety, 
remainder  as  to  the  other  moiety  to  C,  an  infant  in  tail,  remainder 
over.  There  was  timber  upon  the  premises  greatly  decaying ;  where- 
upon B  the  remainderman  brought  a  bill,  praying,  that  the  timber 
that  was  decaying  might  be  cut  down,  and  that  the  plaintiff,  the 
remainderman  in  tail,  together  with  the  other  remainderman,  the 
infant,  might  have  the  money  arising  by  the  sale  of  this  timber.  On 
the  other  hand,  the  tenant  for  life  insisted  to  have  some  share  of  this 
money. 

Lord  Chancellor.  The  timber,  while  standing,  is  part  of  the 
inheritance;  but  whenever  it  is  severed,  either  V)y  the  act  of  God,  as 
by  tempest,  or  by  a  trespasser  and  by  wrong,  it  belongs  to  him  who 


750  BEWICK    V.    WHITFIELD.  [cHAP.  VI. 

has  the  first  estate  of  inheritance,  whether  in  fee  or  in  tail,  who  may 
bring  trover  for  it ;  and  this  was  so  decreed  upon  occasion  of  the  great 
winclfall  of  timber  on  the  Cavendish  estate. 

As  to  the  tenant  for  hfe,  he  ought  not  to  have  any  share  of  the 
money  arising  by  the  sale  of  this  timber;  but  since  he  has  a  right  to 
what  may  be  sufficient  for  repairs  and  botes,  care  must  be  taken  to 
leave  enough  upon  the  estate  for  that  purpose;  and  whatever  damage 
is  done  to  the  tenant  for  life  on  the  premises  by  him  held  for  life,  the 
same  ought  to  be  made  good  to  him. 

Note.  —  See,  accord,  Richardson  v.  York,  14  Me.  216;  White  v. 
Cutler,  17  Pick.  (Mass.)  248;  Mooers  v.  Wait,  3  Wend.  (N.Y.)  104; 
Lane  v.  Thompson,  43  N.H.  320;  Williainson  v.  Jones,  43  W.Va.  562, 
585. 


BOOK  VII. 

PROFITS,   EASEMENTS,  LICENSES,  AND 
COVENANTS  RUNNING  WITH  THE  LAND. 


CHAPTER   I. 
PROFITS. 


SMITH  V.  COOLEY. 

65  Cal.  46.     1884. 

McKee,  J.  Plaintiff  in  the  action  out  of  which  this  case  arises  being 
the  owner  in  fee  of  a  tract  of  land  in  El  Dorado  County  known  and 
described  as  the  northwest  comer  of  the  northeast  quarter  of  section 
9,  in  township  10  north,  range  9  east,  Mount  Diablo  base  and  merid- 
ian, on  the  26th  of  July,  1875,  granted  to  the  defendant  an  interest 
therein,  by  the  following  description,  namely:  "An  undivided  third 
interest  in  a  certain  piece  of  mining  ground  situated  in  White  Oak 
Township,  county  of  El  Dorado,  State  of  Cahfornia,  on  the  north- 
west quarter  of  the  northeast  quarter  of  section  9,  township  10  north, 
range  9  east,  iMount  Diablo  base  and  meridian  [said  'mining  ground' 
being  also  more  particularly  described  by  metes  and  bounds], 
together  with  the  water  rights,  resers'oirs,  and  tail  race  belonging  to 
the  same,  and  it  is  expressly  conditioned  that  this  instrument  con- 
veys no  other  rights,  except  a  mining  right,  on  the  premises  above  to 
the  said  party  of  the  second  part,  liis  heirs  or  assigns." 

After  the  execution  and  deliveiy  of  the  grant,  plaintiff  and  defend- 
ant, for  about  four  years,  worked  the  "ground"  in  partnership  on 
the  basis  of  two  thirds  to  the  plaintiff  and  one  third  to  the  defendant; 
but  after  the  expiration  of  the  four  years  plaintiff  gave  notice  to  the 
defendant  that  he  would  not  be  responsible  for  any  expenses  incurred 
in  working  the  ground,  and  the  defendant  has  since  continued  to 
work  it  for  himself.  Under  these  circumstances  plaintiff  commenced 
the  action  in  hand  for  a  partition. 

Partition  may  be  had  of  real  property,  held  and  occupied  by 
several  persons  as  coparceners,  joint  tenants,  or  tenants  in  common, 
according  to  their  respective  rights  and  interest  in  it,  whether  the 
estate  which  they  own  therein  be  an  estate  of  inheritance,  or  for  life 


752  sivnTH  V.  cooley.  [chap.  i. 

or  lives,  or  for  years.  §  752,  Code  Civ.  Proc.  But  in  the  land  itself, 
described  in  the  deed  under  which  defendant  derives  his  right,  the 
defendant  was  not  a  coparcener,  joint  tenant,  or  tenant  in  common. 
The  deed  only  vested  in  him  a  particular  estate,  i.  e.,  the  right  of 
taking  from  the  land  any  minerals  or  ores  in  place  in  it,  to  the  extent 
of  the  interest  in  them  granted  to  him. 

A  ''  mining  right "  upon  a  specific  piece  of  ground  is  a  right  to  enter 
upon  and  occupy  the  ground,  for  the  purpose  of  working  it,  either  by 
underground  excavations  or  open  workings,  to  obtain  from  it  the 
minerals  or  ores  which  may  be  deposited  therein.  By  implication  the 
grant  of  such  a  right  carries  with  it  whatever  is  incident  to  it  and 
necessai-y  to  its  beneficial  enjoyment.  Clark  v,  Duval,  15  Cal.  86; 
Cave  V.  Crofts,  53  Cal.  135.  In  addition  to  that  implication  the  grant, 
in  this  instance,  conveyed  an  interest  "in  the  water  rights,  reservoirs, 
and  tail  race  "  on  the  mining  ground.  But  it  did  not  convey  the  exclu- 
sive dominion  of  any  portion  of  the  ground  so  as  to  m.ake  the  grantee 
a  joint  tenant  or  tenant  in  common  with  the  grantor.  It  conveyed 
only  a  particular  estate,  or  incorporeal  hereditament,  in  land  of 
which  the  grantor  held  the  general  estate. 

This  particular  estate  or  incorporeal  hereditament  is  what  is 
known  in  law  as  a  9er\dtude  "in  gross,"  or  a  personal  servitude,  im- 
posed upon  land  for  the  benefit  of  the  person  or  persons  owning  the 
right,  irrespective  of  the  ownership  of  the  land.  The  right  is  usu- 
fructuary in  its  nature  and  character,  and  entitles  the  owner  to  the 
use  of  the  land  for  the  profits  which  maj^  be  derived  from  its  rents,  or 
from  quarrying  and  digging  it  for  ores,  or  from  harvesting  its  fruits, 
crops,  and  vintages,  etc.  §§  802-806,  Civ.  Code.  As  an  incorporeal 
hereditament,  it  is  subject  to  the  general  rules  W'hich  govern  the 
enjoyment  of  real  property,  and  to  the  laws  of  descent,  devolution, 
and  transfer  by  act  of  law,  according  to  the  freehold  or  chattel  inter- 
est acquired  in  it;  but  it  is  not  in  its  nature  capable  of  partition, 
because  a  division  of  the  right  would  enlarge  the  original  grant 
beyond  the  intention  of  the  grantor,  and  likewise  prove  a  greater 
charge  than  was  originally  intended  by  the  owner  of  the  soil  (Bacon's 
Ab.  359) ;  and  because,  so  long  as  the  minerals  and  ores,  which  are 
the  subject  of  the  servitude,  are  in  place,  un worked  and  unsevered 
from  the  soil,  they  are  incapable  of  allotment  according  to  qualitj' 
and  quantity  relatively  considered.    §  764,  Code  Civ.  Proc. 

Hughes  v.  Devlin,  23  Cal.  502,  is  not  in  conflict  with  this  conclu- 
sion. The  land  sought  to  be  partitioned  in  that  case  was  a  "mining 
claim,"  which  the  court  held  was  the  subject  of  partition  the  same  as 
other  real  property.  But  why?  Because,  as  was  said  in  Merritt  v. 
Judd,  14  Cal.  60,  "our  courts  have  given  mining  claims  the  recogni- 
tion of  legal  estates  of  freehold;  and  as  to  all  practical  pm-poses, 
if  we  except  some  doctrine  of  abandonment,  not,  perhaps,  appli- 
cable to  such  estates,  they  unquestionably  are." 


CHAP.  I.]  CLAYTON   V.    CORBY.  753 

The  working  of  a  mine  under  a  bare  "mining  right"  has  been 
uniformly  considered  by  courts  of  equity  as  a  species  of  trade.  Hence 
the  legal  relation  existing  between  two  or  more  persons  interested  in 
such  a  right  is  that  of  a  qualified  partnership ;  and  the  remedies  relat- 
ing to  a  mining  partnership  are  available  for  the  assertion  or  viola- 
tion of  any  right  arising  out  of  it.  §  684,  and  ch.  4,  title  10,  Civ.  Code; 
Rich  V.  Davis,  6  Cal.  164;  Duryea  v.  Burt,  28  Cal.  569;  Seitemhre  v. 
Putnam,  30  Cal.  490. 

Judgment  affirmed. 

Note.  —  The  owner  of  land  in  which  there  are  minerals  may  grant 
the  minerals.  Caldwell  v.  Fulton,  31  Pa.  475.  Or  he  may  gi-ant  a 
profit,  entitling  the  grantee  to  enter  and  take  the  minerals.  In  the 
latter  case,  the  right  of  the  grantee  does  not  (in  the  absence  of  any 
agreem.ent  to  the  contrary)  prevent  the  grantor  from  himself  taking 
the  minerals,  or  from  granting  to  others  the  right  to  enter  and  take 
the  minerals.  Silshy  v.  Trotter,  29  N.J.  Eq.  228.  And  the  grantee 
acquires  no  ownership  of  the  minerals  until  they  are  severed,  and 
therefore  may  not  maintain  an  action  to  recover  from  a  trespasser 
the  value  of  the  minerals  severed  by  him.  Baker  v.  Hart,  123  N.Y. 
470. 

The  law  recognizes  profits  to  take  minerals,  or  timber,  or  turf,  or 
herbage  from  the  land  of  another.  Queen  v.  Alnwick,  9  Ad.  &  E.  444. 
So,  of  a  profit  to  fish  or  hunt  upon  the  land  of  another.  Co.  Lit. 
122  a;  Wickham  v.  Hawker,  7  M.  &  W.  63,  79.  But  a  right  to  take 
water  is  said  not  to  be  a  profit.  Race  v.  Ward,  4  El.  &  B.  702. 


CLAYTON  V.   CORBY. 

5  Q.  B.  415.     1843. 

Lord  Denman,  C.J.  This  was  an  application,  on  behalf  of  the 
plaintiff,  for  leave  to  enter  a  verdict  for  him  with  nominal  damages, 
notwithstanding  the  finding  of  the  ']\iry  for  the  defendant  upon  his 
second  plea. 

The  declaration  is  in  trespass  for  breaking  and  entering  the  close 
of  plaintiff,  and  digging  for  and  removing  clay,  sand,  etc.  The  said 
second  plea  states,  in  substance,  that,  before  and  at  the  said  times, 
etc.,  the  defendant  w^as  the  occupier  of  a  certain  tenement  and 
premises,  to  wit  a  brick  kiln,  and  that  he,  as  such  occupier,  and  all 
the  occupiers  for  the  tim.e  being  of  the  said  tenement,  for  the  full 
period  of  thirty  years  before,  etc.,  had  and  enjoyed,  as  of  right  and 
without  interruption,  a  right  to  dig,  take  and  carry  awaj^,  from,  etc., 
so  much  of  the  clay  of  the  said  close  as  was  at  any  time  required  by  him 
or  them  for  the  purpose  of  making  bricks  at  his  said  brick  kiln,  in 


754  CLAYTON   V.    CORBY.  [cHAP.  L 

every  year  and  at  all  times  of  the  year,  and  justifies  the  alleged  tres- 
pass accordingly.  The  replication  takes  issue  on  this  plea.  And  the 
question  is  whether  this  plea  can  be  sustained  in  point  of  law.  And 
we  are  of  opinion  that,  upon  general  principles  and  the  authorities 
connected  with  the  subject,  it  carmot. 

It  is  observable  that,  in  all  cases  of  a  claim  of  right  in  alieno  solo, 
whether  immediately  or  m  any  degree  resemblmg  the  present,  such 
claim,  in  order  to  be  vahd,  must  be  made  with  some  limitation  and 
restriction.  In  the  ordinary  case  of  common  appurtenant,  the  right 
camiot  be  claimed  for  conmaonable  cattle  without  stint,  and  to  any 
number;  but  such  right  is  measured  by  the  capabihty  of  the  tene- 
ment m  question  to  maintain  the  cattle  during  the  winter;  levancy 
and  couchancy  must  be  averred  and  proved.  Again,  in  the  case  of 
common  of  estovers,  or  a  liberty  of  taking  wood,  called  in  the  books 
house  bote,  plough  bote  and  hay  bote,  such  liberty  is  not  wholly 
vague  and  indetemiinate,  but  confined  to  some  certain  and  definite 
use.  The  like  of  the  common  of  piscary'.  The  nature  of  these  rights 
is  thus  compendiously,  but  we  believe  accurately,  given  by  Mr.  Jus- 
tice Blackstone,  2  Comm.  35 :  "  These  several  species  of  commons  do 
all  originally  result  from  the  same  necessity  as  common  of  pasture; 
viz.  for  the  maintenance  and  carrying  on  of  husbandly:  common  of 
piscary  being  given  for  the  sustenance  of  the  tenant's  family;  com- 
mon of  turbary  and  fire  bote  for  his  fuel;  and  house  bote,  plough  bote, 
cart  bote,  and  hedge  bote,  for  repairing  his  house,  his  instruments  of 
tillage,  and  the  necessary  fences  of  his  grounds,"  that  is,  for  a  certain 
and  definite  purpose. 

In  some  of  these  instances,  the  thing  taken  is  more  or  less  immedi- 
ately renewable :  and  it  would  seem  strange  if  in  these  such  precision 
and  certainty  are  required,  but  less  in  others  where  the  claim  is 
larger,  extending,  as  in  the  present  case,  to  a  right  to  disturb  and 
remove  a  portion  of  the  soil  itself.  Upon  reference,  however,  to  the 
authorities,  we  find  that,  in  cases  not  substantially  distmguishable 
from  the  present,  the  same  rule  does,  as  in  reason  it  ought  to  do, 
prevail. 

In  the  case  of  Wilson  v.  WiUes,  7  East,  121,  the  declaration  was 
trespass  for  breaking  and  entering  the  close  of  the  plaintiff,  called 
Hampstead  Heath,  and  digging  and  carrjdng  away  turf  covered  with 
grass,  etc.  Plea,  that  the  locus  in  quo  was  parcel  of  a  waste  in  the 
manor  of  Hampstead;  that  there  had  been,  from  time  immemorial, 
divers  customary  tenements  by  copy  of  court  roll;  and  it  then  alleged 
a  custom  for  tenants  of  such  tenements,  "having  a  garden  or  gardens 
parcel  of  the  same,"  to  dig  turf  for  the  making  and  repairing  grass 
plots  in  such  gardens,  every  year,  at  all  times  of  the  year,  i7i  such 
quantity  as  occasion  hath  required:  and  justified  the  taking  accord- 
ingly. To  this  plea  there  was  a  general  demurrer;  and  judgment  was 
given  for  the  plaintiff.    In  gi^^ing  judgment^  it  was  said,  by  Lord 


CHAP.  I.]  CLAYTON  V.    CORBY.  755 

Ellenborough,  that  "a  custom,  however  ancient,  must  not  be  m- 
defiiiite  and  uncertain;"  that  it  was  "not  defined  what  sort  of  im- 
provement the  custom  extends  to;"  that  "every  part  of  the  garden 
may  be  converted  into  grass  plots;"  that  there  was  "nothing  to  re- 
strain the  tenants /rom  taking  the  whole  of  the  turbury  of  the  cotmnon;" 
and  it  resolved  itself  "into  the  mere  will  and  pleasure  of  the  tenant." 

In  the  case  of  Peppin  v.  Shakespear,  6  T.  R.  748,  the  declaration 
was  trespass  for  breaking,  etc.,  the  plaintiff's  close.  The  plea  stated 
the  gi-ant  to  the  defendant  Shakespear  of  a  customary  tenement  of 
the  manor  of  which  the  locus  in  quo  was  parcel,  and  a  custom  for  the 
tenants  thereof  to  have  common  of  pasture,  and,  also,  a  liberty  of 
digging  sand,  etc.,  for  their  necessary  repairs;  there  was  then  a  justifi- 
cation of  the  breaking,  etc.,  into  the  locus  in  quo,  as  parcel  of  the  com- 
mon, for  such  puipose.  The  court  gave  judgment  for  the  plaintiff, 
on  account  of  defects  in  the  plea:  in  which  judgment  it  was  said  that 
the  plea  "stated  that  the  defendant  entered,  etc.,  for  the  pui-jjose  of 
digging  for  and  carrying  away  sand,  etc.,  for  the  necessary  repairs  of 
the  said  defendant."  "That  no  question  could  be  made  about  any 
of  the  pleas"  (there  having  been  others,  which  it  is  not  necessary 
for  us  to  notice)  "but  that  in  which  it  was  stated  that  the  tenement 
was  a  messuage.  And  with  respect  to  that  they  said  that  it  ought 
to  have  been  expressly  alleged  that  the  house  was  in  want  of  repair, 
that  the  defendants  entered  for  the  purpose  of  digging  for  and  carry- 
ing away  sand,  etc.,  for  the  necessary  repairs  of  that  house,  and  that 
they  used  the  sand,  etc.,  for  that  purpose." 

It  is  true  that  these  two  cases  respect  the  validity  of  a  custom ;  but 
the  reasons  upon  which  the  judgments  are  respectively  founded  have 
a  strong  bearing  upon  the  degree  of  certainty  and  precision  with 
which  a  claim  of  right  generally,  in  order  to  be  supported,  ought  to 
be  described. 

It  remains  now  to  be  considered  whether  the  objection  of  vague- 
ness and  uncertainty  be  applicable  to  the  plea  in  question  or  not. 
And  we  think  that  it  is. 

The  nature  of  the  tenement  (so  called),  a  brick  kiln,  leads  to  no 
conclusion,  one  way  or  the  other,  as  to  the  extent  of  the  claim  and 
demand  upon  the  soil  of  the  plaintiff.  It  may  have  been,  at  the  time 
of  the  trespass,  of  any  dimensions  and  capacity.  It  may  have  been, 
during  the  thirty  years  of  alleged  enjojinent,  continually  varying; 
and  consequently  the  quantity  of  clay  required  for  the  pm-pose  of 
making  bricks  thereat  may  have  varied  also.  There  is  no  limit.  No 
amount  of  clay  (measured  by  cart  loads  or  otherwise)  "required," 
no  number  of  bricks  (estimated  by  hundreds  or  thousands)  claimed 
to  be  made,  is  given  or  attempted.  What  is  it,  therefore,  but  an 
indefinite  claim  to  take  all  the  clay  "out  of  and  from  the  said  close  in 
which,  etc.,"  or,  in  other  words,  to  take  from  the  plaintiff,  the  owner, 
the  whole  close? 


756  CLAYTON   V.    CORBY.  [CHAP.  L 

We  are  of  opinion,  therefore,  that  the  plea  cannot  be  sustained, 
and  that  there  must  be  judgment  for  the  plaintiff  for  nominal  dam- 
ages, notwithstanding  the  finding  of  the  jury  for  the  defendant  upon 
that  plea. 

Rule  absolute. 

Note.  —  A  profit  may  be  in  gross,  and  such  a  right  is  assignable. 
Muskett  V.  Hill,  5  Bing.  N.  C.  694. 

Or  a  profit  may  be  appurtenant.  See,  respecting  the  limit  of  the 
right  in  such  case,  in  accord  with  the  principal  case,  Hall  v.  Laimrence, 
2  R.I.  218. 

A  profit  appurtenant  is  assigned  by  a  transfer  of  the  land  to  which 
it  is  appurtenant,  without  express  mention  of  the  profit.  Sacheverill 
V.  Porter,  Cro.  Car.  482.  It  cannot  be  severed  from  the  land.  Drury 
V.  Kent,  Cro.  Jac.  14. 


CHAP.  II.]  BOATMAN    V.    LASLEY.  757 


CHAPTER  II. 

EASEMENTS. 


BOATMAN  V.   LASLEY. 

23  Ohio  St.  614.     1873. 

Motion  for  leave  to  file  a  petition  in  error  to  the  District  Court  of 
Gallia  County.  .    -       •    "  ' 

The  original  action  was  brought  in  the  Court  of  Common  Pleas  of 
GalHa  County  by  Matthew  Lasley  against  Isaac  Boatman  and  wife, 
to  foreclose  a  mortgage  executed  by  the  defendants  to  secure  the 
payment  of  purchase  money  of  the  lands  mortgaged.  The  mortgaged 
premises  had  been  conveyed  by  the  plaintiff  to  defendant,  Isaac 
Boatman,  on  the  15th  of  March,  1870,  by  a  deed  containing  a  cove- 
nant that  the  demised  premises  were  free  and  clear  of  all  incum- 
brances. The  defendant  answered,  and  by  way  of  counter-claim, 
alleged  damages  resulting  from  a  breach  of  this  covenant  against 
incumbrances.  The  alleged  incumbrance  consisted  of  a  private  right 
of  way  over  the  warranted  premises,  outstanding  at  the  date  of  the 
conveyance  in  one  Alexander  Logue.  This  right  of  way  had  been 
granted  by  deed,  on  the  7th  day  of  June,  1862,  by  the  warrantor,  to 
Logue,  his  heirs  and  assigns,  and  the  tenants  or  occupiers  for  the 
time  being  of  the  lands  now  (then)  owned  and  occupied  by  the  said 
Alexander  Logue,  in  section  15,  town  5,  of  range  14,  in  the  Ohio 
Company's  Purchase.  It  is  also  alleged  in  the  answer,  that,  before 
the  15th  of  March,  1870  (the  date  of  the  covenant),  said  Logue  had 
conveyed  his  lands  in  section  15,  town  5,  of  range  14,  in  the  Ohio 
Company's  Purchase,  to  one  George  W.  Roush.  It  is  not  alleged, 
however,  that  Logue,  at  the  time  the  right  of  way  over  the  warranted 
premises  was  granted  to  him  by  the  plaintiff,  was  the  owner  or  occu- 
pier of  any  land  in  said  section  15,  or  elsewhere,  nor  is  it  alleged  that 
the  right  of  way  complained  of  became  appendant  or  appurtenant 
to  any  land  whatever,  or  that  said  Roush  had  any  interest  in  said 
right  of  way. 

The  plaintiff,  in  his  reply,  denied  that  Roush  had  an  easement  or 
right  of  way  on  the  premises  granted  to  the  defendant,  and  also 
denied  that  the  defendant  had  sustained  any  damage  by  reason  of 
the  right  of  way  complained  of. 

The  cause  was  submitted  to  a  jurj',  who  assessed  the  defendant's 


758  BOATMAN   V.    LASLEY.  [CHAP.  II. 

damages,  by  reason  of  the  existence  of  the  right  of  way,  at  SlOO, 
which  sum  was  deducted  from  the  mortgage  debt,  and  decree  entered 
m  favor  of  the  plaintiff  for  the  balance. 

During  the  trial  the  defendant  took  a  bill  of  exceptions,  from  which 
it  appears  that  the  defendants  offered  in  evidence  the  deed  for  the 
right  of  way  from  Lasley  to  Logue,  a  copy  of  which  is  attached, 
marked  "A."  They  also  gave  evidence  tending  to  prove  that  said 
right  of  way  was  still  in  the  occupation  of  said  Alexander  Logue,  and 
those  claiming  under  him,  who  were  then  occupying  the  lands  to 
which  said  right  of  way  was  intended  to  be  made  appendant.  "And 
the  plaintiff,  to  maintain  the  issue  on  his  part,  gave  evidence  tending 
to  show  that  at  the  time  said  deed  of  right  of  way  was  executed  by 
him  to  Alexander  Logue,  the  said  Logue  did  not  own  the  land  to 
which  the  right  of  way  was  intended  to  be  appendant,  and  that  said 
Logue  had,  prior  to  the  execution  of  the  deed  of  right  of  way,  con- 
veyed said  lands  to  one  George  W.  Roush." 

The  evidence  being  closed,  the  court  charged  the  jury  as  follows: 
"  If  the  jury  shall  find  from  the  evidence  that  at  the  date  of  the  deed 
made  by  Lasley  to  Logue,  marked  'A,'  the  said  Alexander  Logue, 
grantee  therein,  was  not  the  owner  in  fee  or  otherwise  of  some  real 
estate  adjoining  the  farm  through  which  said  right  of  way  is  granted, 
or  situate  in  the  neighborhood,  so  that  said  right  of  way  may  become 
appurtenant  to  the  same,  then  the  said  deed  conveys  a  right  of  way 
personal  to  himself  alone  —  one  which  cannot  descend  to  his  heirs, 
and  one  which  he  cannot  assign  or  release  to  another  person,  except 
such  other  person  be  the  owner  of  the  farm  through  which  said  way 
was  granted." 

The  judgment  of  the  Common  Pleas  was  afterward,  on  petition  in 
error,  affirmed  by  the  District  Court  of  Gallia  County. 

Leave  is  now  asked  to  file  a  petition  in  error  in  this  court  to  reverse 
the  judgment  below,  for  alleged  error  in  the  charge  to  the  jury  as 
above  set  forth. 

McIlvaine,  J.  Is  a  private  right  of  way  over  the  lands  of  another, 
in  gross,  such  an  interest  or  estate  in  land  as  may  be  cast  by  descent, 
or  may  be  assigned  by  the  grantee  to  one  who  has  no  interest  in  the 
land?  These  are  the  only  questions  in  this  case.  If  such  a  right  be 
inheritable  or  assignable,  the  Court  of  Common  Pleas  erred  in  its 
charge;  otherwise  there  is  no  error  in  the  record. 

The  terms  of  the  deed  from  Lasley  to  Logue  plainly  import  an 
intention  to  make  the  right  of  way  therein  granted  appendant  and 
appurtenant  to  other  lands,  but  the  record  does  not  disclose  either 
the  facts  or  the  law  given  to  the  jurj'-,  whereby  it  could  determine 
whether  or  not  that  intention  was  accomplished.  It  simply  shows 
that  the  jury  was  instructed  that  if  the  right  of  way  granted  did  not 
and  could  not,  under  the  circumstances,  become  appurtenant  to 
lands  other  than  those  over  which  it  was  granted,  then  it  was  a  mere 


CHAP.  TI.]  BOATMAN   V.    LASLEY.  759 

personal  right  in  the  grantee,  which  could  not  be  inherited  from  him, 
or  transferred  b}'  him  to  a  stranger. 

The  correctness  of  this  instruction  does  not  depend  upon  a  con- 
struction of  the  deed  by  which  it  was  granted,  for  the  terms  of  the 
grant  are  "to  Alexander  Logue,  his  heirs  and  assigns."  The  real 
question  is,  whether  or  not  a  private  right  of  way  in  gross  is,  m  law, 
capable  of  being  transferred  or  transmitted. 

It  is  strongly  insisted  upon,  in  argument,  that  a  right  of  way 
in  gross  may  be  conveyed  to  the  grantee  "and  to  his  heirs  and 
assigns  forever,"  because  an  owner  in  fee  may  carve  out  of  his  estate 
any  interest  less  than  the  whole  and  dispose  of  the  less  estate  abso- 
lutely; and  this  because  the  power  to  dispose  of  the  whole  estate 
includes  a  power  to  dispose  of  any  part  of  it. 

This  argument  assumes  the  affirmative  of  the  very  question  in 
controversy,  to  wit,  that  such  a  right  of  way  is  an  interest  or  estate  in 
the  land. 

A  mere  naked  right  to  pass  and  repass  over  the  land  of  another, 
a  use  which  excludes  all  participation  in  the  profits  of  the  land,  is  not, 
in  any  proper  sense,  an  interest  or  estate  in  the  land  itself.  Such  a 
right  is  in  its  nature  personal;  it  attaches  itself  to  the  person  of  him 
to  whom  it  is  granted,  and  must  die  with  the  person. 

If  such  right  be  an  inheritable  estate,  how  will  the  heirs  take?  In 
severalty,  in  joint  tenancy,  coparcenaiy,  or  as  tenants  in  common? 
If  not  in  severalty,  how  can  their  interests  be  severed  ? 

If  it  be  assignable,  what  limit  can  be  placed  on  the  power  of  aliena- 
tion? To  whom  and  to  how  many  may  it  be  transferred?  Why  not 
to  the  public  at  large,  and  thus  convert  into  a  public  way  that  which 
was  intended  to  be  a  private  and  exclusive  way  only  ? 

Where  the  way  is  appendant  or  appurtenant  to  other  lands,  very 
different  considerations  arise.  There  the  right  attaches  to  the  lands 
to  which  the  w^ay  is  appurtenant,  because  it  is  granted  for  the  con- 
venience of  their  occupation  without  respect  to  the  ownership  or 
number  of  occupants.  In  such  case  the  right  of  way  passes  with  the 
dominant  estate  as  an  incident  thereto.  A  right  of  way  appendant 
cannot  be  converted  into  a  way  in  gross,  nor  can  a  way  in  gross  be 
turned  into  a  way  appendant. 

A  very  marked  distinction  also  exists  between  a  way  in  gross  and 
an  easement  of  profit  a  prendre;  such  as  the  right  to  enter  u]:>on  the 
lands  of  another,  and  remove  gravel  or  other  materials  tlici-efrom. 
The  latter  so  far  partakes  of  the  nature  of  an  estate  in  the  land  itself 
as  to  be  treated  as  an  inheritable  and  assignable  interest.  Post  v. 
Pearsall,  22  Wend.  432. 

Both  upon  principle  and  authority,  we  think  there  was  no  error  in 
the  charge  of  the  court  below.  Mr.  Wasliburn  in  his  work  on  Ease- 
ments, page  8,  par.  11,  states  the  law  upon  this  subject  as  follows: 
"A  man  may  have  a  way  in  gross  over  another's  land,  but  it  must, 


760  GOODRICH   V.    BURBANK.  [cHAP.  U. 

from  its  nature,  be  a  personal  right  not  assignable  or  inheritable;  nor 
can  it  be  made  so  by  any  terms  in  the  grant,  any  more  than  a  collat- 
eral and  independent  contract  can  be  made  to  run  with  the  land." 
See  also  Ackroyd  v.  Smith,  10  C.  B.  164;  Garrison  v.  Budd,  19  111.  558; 
Post  V.  Pearsall,  22  Wend.  432;  Wooh-ych  on  Ways,  20;  2  Black. 
Com.  35;  3  Kent's  Com.  420,  512. 

Leave  refused. 

Note.  —  See,  accord,  Fisher  v.  Fair,  34  S.C.  203. 

There  are  dicta,  accord,  in  Wagner  v.  Hanna,  38  Cal.  Ill,  116; 
Moore  v.  Crose,  43  Ind.  30,  34;  Kuecken  v.  Voltz,  110  111.  264,  268; 
Tinicum  Fishing  Co.  v.  Carter,  61  Pa.  21,  38;  Cadwalader  v.  Bailey, 
17  R.I.  495,  499. 


GOODRICH  V.  BURBANK. 

12  AU.  (Mass.)  459.     1866. 

Foster,  J.  This  action  of  tort  is  brought  to  recover  damages  for 
the  acts  of  the  defendant  on  his  own  land,  who  has  cut  off  a  pipe  by 
which  water  was  conducted  from  a  spring  thereon,  and  has  con- 
taminated the  water  which  flowed  through  said  pipe  to  the  plaintiff's 
premises.  The  lot  on  which  the  spring  is  situated  was  part  of  a  farm 
owned  by  Thomas  F.  Plunkett,  and  conveyed  to  the  defendant  by 
Plunkett  by  a  deed  dated  March  27,  1850,  containing  the  following 
clause:  "Also  reserving  to  myself,  my  heirs  and  assigns,  the  right  of 
taking  so  much  water  forever  from  the  spring  situate  on  the  lot  last 
above  described,  and  from  which  water  is  now  taken  in  a  pipe  to 
supply  the  grounds  of  W.  H.  Tyler,  as  now  runs  in  said  pipe,  so  long 
as  said  pipe  lasts,  together  with  the  right  to  replace  the  same  with 
a  pipe  of  one  and  one  quarter  inch  inside  calibre,  and  also  the  right  of 
taking  so  much  water  from  said  spring  as  will  run  in  said  pipe  of  one 
and  one  quarter  inch  calibre,  when  thus  substituted  for  the  present 
pipe,  together  with  the  right  to  enter  and  repair  said  aqueduct  at  all 
times,  it  being  understood  that  I  am  to  pay  such  damages  as  may  be 
from  time  to  time  occasioned  to  the  crops  and  land  by  said  repairs, 
and  said  Burbank,  his  heirs  and  assigns,  is  not  to  molest  said  Plun- 
kett, his  heirs  and  assigns,  in  the  use  of  the  above-reserved  rights." 
At  the  date  of  this  deed,  the  pipe  was  laid  as  it  now  is  through  the 
defendant's  estate,  and  conducted  water  to  the  premises  of  W.  H. 
Tyler.  No  part  of  Plunkett 's  remaining  estate  was  then  or  ever  had 
been  supplied  with  water  from  this  aqueduct.  It  is  therefore  improb- 
able that  the  reservation  was  intended  for  the  exclusive  benefit 
thereof.  Plunkett  had  given  to  Tyler  no  right,  but  the  latter  had 
only  a  revocable  license  from  Plunkett's  predecessor  to  the  use  of 


CHAP.  II.]  GOODRICH    V.    BURBANK.  761 

the  aqueduct;  and  there  is  no  reason  to  suppose  that  Plunkett  in- 
tended to  annex  the  reservation  to  the  estate  of  a  stranger,  if  that 
were  possible.  The  language  used  is  broad  and  unqualified.  The 
right  is  reserved  to  Plunkett,  his  heirs  and  assigns,  and  not  to  the 
assigns  of  his  remaining  estate.  There  is  no  restriction  as  to  the  place 
where  or  the  purpose  for  which  the  water  might  be  used,  but  only 
as  to  the  quantity  reserved.  We  are  therefore  satisfied  that  Plunkett 
intended  to  retain  for  himself,  his  heirs  and  assigns,  a  right,  the 
enjoyment  of  which  was  limited  to  no  particular  premises,  capable 
of  being  used  upon  any  land  which  he  or  they  might  at  any  time 
acquire,  an  assignable  and  inheritable  interest,  not  annexed  to  any 
parcel  of  land.  If  the  rules  of  law  permit  the  acquisition  of  such  a 
right  by  reservation  or  grant,  we  cannot  doubt  that  it  has  been  effec- 
tually created  in  the  present  instance.  And  if  so,  it  must  inure  to  the 
benefit  of  the  present  plaintiff,  who  has  derived  it  by  warranty  deed 
from  Plunkett  through  divers  mesne  conveyances. 

But  the  defendant  insists  that  such  an  interest  is  a  predial  servi- 
tude, in  its  nature  inseparably  annexed  to  some  estate,  apart  from 
which  it  cannot  be  enjoyed;  that  if  regarded  as  an  easement  in  gross, 
it  is  necessarily  of  a  purely  personal  character,  incapable  of  assign- 
ment or  inheritance,  belonging  to  Plunkett  alone  for  his  personal 
benefit. 

This  proposition  requires  examination.  There  are  dicta,  perhaps 
authorities,  to  the  effect  that  an  easement  proper,  like  a  way  in 
gross,  cannot  be  created  by  grant,  so  as  to  be  assignable  or  inherit- 
able. Washburn  on  Easements,  80.  Ackroyd  v.  Smith,  10  C.  B.  187. 
However  the  law  may  be  elsewhere,  it  would  be  difficult  to  establish 
that  doctrine  in  this  commonwealth,  where  it  has  been  held  that 
ways  in  gross  "may  be  granted  or  may  accrue  in  various  forms  to  one, 
his  heirs  and  assigns;"  White  v.  Crawford,  10  Mass.  188;  and  that 
"the  law  is  settled  in  Massachusetts,  by  a  series  of  decisions,  that  a 
right  of  way  may  be  as  well  created  by  a  reservation  or  exception  in 
the  deed  of  the  grantor,  reserving  or  retaining  to  himself  and  his 
heirs  a  right  of  way  either  in  gross  or  as  annexed  to  lands  owned  by 
him  so  as  to  charge  the  lands  granted  with  such  easement  and  servi- 
tude, as  by  a  deed  from  the  owner  of  the  land  to  be  charged,  granting 
such  way  either  in  gross  or  as  appurtenant  to  other  estate  of  the 
grantee."  Bowen  v.  Connor,  6  Cush.  137. 

In  the  case  of  rights  of  profit  a  prendre,  it  seems  to  be  held  uni- 
formly that,  if  enjoyed  in  connection  with  a  certain  estate,  they  are 
regarded  as  easements  appurtenant  thereto,  but  if  granted  to  one  in 
gross  they  are  treated  as  an  estate  or  interest  in  land,  and  may  be 
assignable  or  inheritable.  Post  v.  Pearsall,  22  Wend.  425.  Washburn 
on  Easements,  7.  The  right  to  take  water  from  a  well  or  spring  is 
held  to  be  an  interest  in  land,  although  not  a  profit  d  prendre,  and 
may  be  claimed  by  custom.  Race  v.  Ward,  4  El.  &  Bl.  702.  And  we 


762  GOODRICH    V.    BURBANK.  [CHAP.  IL 

are  aware  of  no  case  which  denies  that  the  right  to  an  aqueduct  may 
be  so  created  as  to  exist  independently  of  any  particular  parce)  of 
land  owned  by  the  gi-antee  thereof,  and  be  enjoyed  by  him  and  his 
heirs  on  any  estate  which  he  or  they  may  own  or  acquire,  and  be 
capable  of  assignment  or  conveyance  in  gross.  The  water  itself  may 
not  be  the  subject  of  property,  but  the  right  to  take  it  and  to  hav^e 
pipes  laid  in  the  soil  of  another  for  that  purpose,  and  to  enter  upon 
the  land  of  another  to  lay,  repair  and  renew  such  pipes,  is  an  interest 
in  the  realty,  assignable,  descendible  and  devisable.  On  this  subject 
the  language  of  Judge  Curtis  is  as  follows:  "I  know  of  no  rule  of  the 
common  law  which  prohibits  grants  of  the  incorporeal  right  to  divert 
water  from  being  made  in  gross.  If  I  have  a  spring,  I  may  sell  the 
right  to  take  water  from  it  by  pipes,  to  one  who  does  not  own  the 
land  across  which  the  pipes  are  to  be  carried,  and  I  may  either  restrict 
the  use  to  a  particular  house,  or  not,  as  I  please.  It  is  true  the  grantee 
cannot  make  the  grant  useful  without  acquiring  from  the  owner  of 
the  intermediate  land  the  right  to  lay  pipes  therein,  nor  can  he  use 
the  water  in  a  house  until  he  obtains  the  right  to  possess  that  house. 
But  these  may  be  acquired  afterwards.  Incorporeal  rights  may  be 
inseparably  annexed  to  a  particular  messuage  or  tract  of  land,  by  the 
gi-ant  which  creates  them,  and  makes  them  incapable  of  separate 
existence.  But  they  may  also  be  granted  in  gross,  and  afterwards, 
for  purposes  of  enjoyment,  be  annexed  to  a  messuage  or  land,  and 
again  severed  therefrom  by  a  conveyance  of  the  messuage  or  land, 
without  the  right,  or  a  conveyance  of  the  right  without  the  land." 
Lonsdale  Co.  v.  Moies,  21  Law  Rep.  664. 

We  have  many  cases  in  our  own  reports  which  recognize  the  right 
to  take  a  certain  quantity  of  water  from  a  mill  pond  as  a  distinct  and 
substantive  subject  of  grant,  without  restriction  as  to  its  use  at  any 
designated  place.  Rights  of  water  duly  granted  by  deed,  not  appur- 
tenant to  any  particular  parcel  of  land,  may  be  used  by  the  owner  at 
any  place  or  in  any  maimer,  so  long  as  he  does  not  interfere  with  or 
impair  the  rights  of  others.  De  Witt  v.  Harvey,  4  Gray,  486.  We  are 
unable  to  distinguish  between  the  right  to  take  water  by  a  canal 
from  a  pond  for  the  purposes  of  power,  and  the  right  to  take  it  from 
a  spring  in  a  pipe  for  domestic  purposes,  the  watering  of  cattle,  to 
supply  an  artificial  jet  or  fountain,  and  to  sell  it  to  others  for  any  uses 
they  may  desire  to  make  of  it. 

In  the  present  case  it  does  not  appear  that  the  change  in  the  direc- 
tion or  location  of  the  pipe  after  it  leaves  the  land  of  the  defendant 
has  increased  the  quantity  of  water  taken  from  the  spring.  We  are 
therefore  of  opinion  that  this  action  can  be  maintained;  and,  the 
judge  who  presided  at  the  trial  in  the  superior  court  having  ruled 
otherwise,  the  exceptions  are  sustained 

Note.  —  See,  accord,  Engel  v.  Ayer,  85  Me.  448  (maintaining  a 


*CHAP.  II-l  WILLOUGHBY    V.    LAWRENCE.  763 

boom);  Shreve  v.  Mathis,  63  N.J.  Eq.  170  (right  of  .way);  Mayor  v. 
Law,  125  N.Y.  380  (wharfage) ;  Poull  v.  Mockley,  33  Wis.  482. 
There  is  a  dictum,  accord,  in  Hall  v.  Ionia,  38  Mich.  493,  499. 


WILLOUGHBY  v.  LAWRENCE. 

116  lU.  11.     1886. 

The  lessees  of  a  tract  of  land  used  as  a  trotting  park  gave  to  the 
plaintiffs  for  a  valuable  consideration  the  right  to  use  the  fences  and 
all  the  buildings  erected  or  to  be  erected  upon  the  tract,  except  the 
club  house,  for  advertising  pm-poses.  The  question  was  whether  this 
right  was  effective  against  assignees  of  the  lease. 

Mr.  Justice  Magruder  delivered  the  opinion  of  the  court: 

The  first  question  is  as  to  the  natm-e  of  the  interest  acquii-ed  by 
appellants  under  theu-  contract.  It  gave  them  and  their  heirs,  repre- 
sentatives and  assigns,  the  right  to  use  all  of  the  surfaces  of  the  fences 
and  buildings  (except  the  club  house)  for  advertising  purposes,  for  a 
period  of  nearlj'  five  years,  or  ten  years,  if  Lawrence  &  ]\Iartin,  or 
theii-  assigns,  should  occupy  the  premises  so  long.  "  All  of  the  surface 
of  said  fences"  included  the  inside  as  well  as  the  outside  of  the  main 
fence.  The  buildings  were  inside  of  the  enclosure.  Therefore  the 
right  to  use  the  fences  and  buildings  for  the  purpose  of  posting  adver- 
tising notices  upon  them,  involved  and  included  the  riglit  of  entry 
upon  the  premises  to  reach  the  buildings  and  the  inner  surface  of  the 
fence.  The  privileges  accorded  involved  and  impHed  a  right  of  way 
upon  the  land  to  the  inside  of  the  fence  and  to  the  surface  of  the 
buildings.  Such  a  right,  if  not  actually  an  easement,  was  a  burden  or 
servitude  in  the  nature  of  an  easement. 

The  general  rule  is,  that  two  distinct  tenements  are  necessary  to 
the  creation  of  an  easement,  —  the  dominant,  to  which  the  right 
belongs,  and  the  servient,  upon  which  the  obligation  rests,  —  as,  if 
the  owner  of  one  farm  has  a  right  of  way  over  the  adjoining  farm, 
that  in  favor  of  which  the  right  is  exercised  is  the  dominant  tenement, 
that  over  which  it  is  exercised  is  the  servient  tenement.  Washburn 
on  Easements  and  Servitudes,  p.  3,  et  seq.;  Garrison  v.  Riidd,  19  111. 
558.  In  easements  of  this  character  the  burden  rests  upon  one  piece 
of  land  in  favor  of  another  piece  of  land.  But  there  is  a  class  of  rights 
which  one  may  have  in  another's  land  without  their  being  exercised 
in  connection  with  the  occupancy  of  other  lands,  and  therefore  called 
rights  in  gross.  Washburn  on  Easements,  4.  In  such  cases  the  burden 
rests  upon  one  piece  of  land  in  favor  of  a  person  or  individual.  The 
principal  distinction  between  an  easement  and  a  right  of  way  in 
g7-oss  is  found  in  the  fact  that  in  the  first  there  is,  and  in  the  second 
there  is  not,  a  dominant  tenement.  The  right  of  way  is  in  gross,  and 


764  WILLOUGHBY   V.    LAWRENCE.  [CHAP.  H. 

personal  to  the  grantee,  because  it  is  not  appurtenant  to  other  prem- 
ises. The  owner  of  premises  may  grant  the  right  of  way  in  either 
form.  Wagner  v.  Hannah,  38  Cal.  111.  There  is,  moreover,  a  kind  of 
appendancy  or  appurtenancy  of  one  easement  to  or  upon  another 
easement,  in  some  cases,  which  is  sometimes  called  a  secondary  ease- 
ment. It  passes  with  the  principal  easement,  as  being  necessary  or 
convenient  to  the  enjoyment  of  the  same.  The  grant  of  a  right  of 
pasturage  cames  the  right  of  way  to  and  from  the  pasture.  So,  that 
of  drawing  water,  or  of  fishing,  or  hunting,  gives  a  right  of  access  and 
egress  to  and  from  the  estate  in  which  it  is  to  be  enjoyed.  Washburn 
on  Easements,  p.  39;  Alexander  v.  Tolleston  Club,  110  111.  65.  In  the 
case  at  bar,  a  certain  right  of  way,  or  right  of  access  and  egress  to  and 
from  the  trotting  park,  passed  with  the  privileges  of  using  the  fences 
and  buildings  for  advertising  purposes,  as  being  necessary  and  con- 
venient to  the  enjoyment  of  such  privileges.  The  right  conferred 
upon  appellants  by  the  contract  was  more  than  a  mere  revocable 
license,  as  claimed  by  appellees,  because  Willoughby  &  Hill  actually 
constructed  the  fence  at  an  expense  to  themselves  of  $2300,  and  fully 
executed  their  part  of  the  agreement.  Washburn  on  Easements,  pp. 
29,  30,  et  seq. ;  Van  Ohlen  v.  Van  Ohlen,  56  111.  528.  They  acquired, 
by  the  terms  of  their  contract,  a  certain  interest  in  these  premises, 
which  was  in  the  nature  of  a  right  of  way  in  gross,  and  which  a  court 
of  equity  will  regard  as  at  least  an  equitable  charge  or  burden  thereon 
in  their  favor. 

The  next  question  is,  whether  the  Chicago  Jockey  and  Trotting 
Club,  immediate  assignee  from  Lawrence  &  Martin,  took  the  lease 
and  improvements  subject  to  this  burden  or  freed  from  it.  In  order 
to  determine  this  question,  it  is  necessary  to  determine  whether  the 
club  had  notice,  actual  or  constructive,  of  the  rights  of  appellants 
under  the  contract,  or  made  its  purchase  under  such  circumstances 
as  put  it  upon  inquiry  as  to  those  rights.  To  bind  a  purchaser  of  a 
servient  estate  by  a  servitude  charged  thereon,  he  should  have  notice 
thereof,  as  in  case  of  other  incumbrances  upon  land.  Washburn  on 
Easements,  42,  note  2;  McCann  v.  Day,  57  111.  101.  The  contract 
was  recorded  on  the  second  day  of  August,  1878.  Was  it  an  instru- 
ment of  such  a  character  that  its  record  operated  as  notice  to  the 
club?  The  31st  section  of  the  Conveyance  Act  provides,  that  "deeds, 
mortgages,  and  other  instruments  of  vrriting  relating  to  real  estate, 
shall  be  deemed,  from  the  time  of  being  filed  for  record,  notice  to 
subsequent  purchasers  and  creditors,  though  not  acknowledged  or 
proven  according  to  law."  The  38th  section  of  the  same  act  pro\Tldes, 
that  "the  term  'real  estate,'  as  used  in  this  act,  shall  be  construed  as 
coextensive  in  meaning  with  *  lands,  tenements  and  hereditaments,' 
and  as  embracing  all  chattels  real."  The  lease  from  ^lagie  &  Tree  to 
Lawrence  &  Martin  was  a  chattel  real,  and  was  entitled  to  record  to 
give  notice  of  the  leasehold  interest  of  the  lessees  therein.  The  con- 


CHAP.  II.]  HILL   V.    TUPPER.  765 

tract  in  question,  conveying  the  use  for  certain  purposes  of  the 
fences  and  buildings  upon  land,  which  is  particularly  described,  and 
involving  a  right  of  way  upon  the  land  in  order  to  enjoy  such  use,  is 
an  instrument  in  writing  relating  to  a  chattel  real.  Under  the  28th 
section  of  the  Conveyance  Act  it  is  an  instrument  ^^ relating  to  or 
affecting  the  title  to  a  chattel  real."  It  imposes  a  charge  or  burden 
upon  the  leasehold  interest  of  Lawrence  &  Martin,  and  designates 
an  interest,  which  is  carved  out  of  that  estate  or  included  in  it.  We 
do  not  perceive  why  it  is  not  embraced  in  the  class  of  instruments 
whose  record  affects  subsequent  pm'chasers  and  creditors  with 
notice. 


HILL  V,  TUPPER. 

2  H.  &  C.  121.     1863, 

Declara-TION.  —  For  that,  before  and  at  the  time  of  the  commit- 
ting by  the  defendant  of  the  grievances  hereinafter  mentioned,  the 
plaintiff  was  entitled  to,  and  had  and  was  possessed  of,  the  sole  and 
exclusive  right  or  liberty  to  put  or  use  boats  on  a  certain  canal,  called 
the  Basingstoke  Canal,  for  the  purposes  of  pleasure  and  to  let  the 
same  boats  for  hire  on  the  said  canal  for  the  purposes  of  pleasure. 
Yet  the  plaintiff  says  that,  whilst  he  was  so  entitled  and  possessed 
as  aforesaid,  the  defendant,  well  knowing  the  premises,  wrongfully 
and  unjustly  disturbed  the  plaintiff  in  the  possession,  use  and  enjoy- 
ment of  his  said  right  or  liberty,  by  wrongfully  and  unjustly  putting 
and  using,  and  causing  to  be  put  and  used,  divers  boats  on  the  said 
canal  for  the  purposes  of  pleasure,  and  by  letting  boats  on  the  said 
canal  for  hire,  and  otherwise  for  the  purposes  of  pleasure.  By  means 
of  which  said  premises  the  plaintiff  was  not  only  greatly  disturbed  in 
the  use,  enjo^mient  and  possession  of  his  said  right  and  Uberty,  but 
has  also  lost  great  gains  and  profits  which  he  ought  and  otherwise 
would  have  acquired  from  the  sole  and  exclusive  possession,  use  and 
enjojnnent  of  his  said  right  or  liberty,  and  was  otherwise  greatly 
aggrieved  and  prejudiced. 

Pleas.  —  First:  not  guilty.  Secondly:  that  the  plaintiff  was  not 
entitled  to,  nor  had  he,  nor  was  he  possessed  of,  the  sole  and  exclusive 
right  or  liberty  to  put  or  use  boats  on  the  said  canal  for  the  pur- 
poses of  pleasure,  nor  to  let  the  said  boats  for  hire  on  the  said  canal 
for  the  purposes  of  pleasure  as  alleged.  —  Issues  thereon. 

At  the  trial,  before  Bramwell,  B.,  at  the  London  Sittings,  after 
last  Hilary  Term,  the  following  facts  appeared:  —  Under  the  18 
Geo.  3,  c.  75,  the  Company  of  Proprietors  of  the  Basingstoke  Canal 
Navigation  were  incorporated  with  perpetual  succession  and  a  com- 
mon seal,  for  the  purpose  of  making  and  maintaining  a  navigable 


766  HILL   V.    TUPPER.  [cHAP.  IL 

canal  from  the  town  of  Basingstoke,  in  the  county  of  Southampton, 
to  communicate  with  the  river  Wey  in  the  parish  of  Chertsey,  in  the 
county  of  Surrey.  The  lands  purchased  by  the  company  of  proprie- 
tors, under  their  parliamentary  powers,  were  by  the  act  vested  in  the 
company. 

By  the  100th  section  of  the  act  it  is  enacted:  "That  it  shall  and 
maj'^  be  lawful  for  the  owners  and  occupiers  of  any  lands  or  gi'ounds 
adjoining  to  the  said  canal,  to  use  upon  the  said  canal  any  pleasure 
boat  or  boats,  or  any  other  boat  or  boats,  for  the  pm-pose  of  husbandry 
only,  or  for  conveying  cattle  from  one  farm,  or  part  of  a  farm  or 
lands,  to  any  other  farm  or  lands  of  the  same  owner  or  occupier,  with- 
out interruption  from  the  said  company  of  proprietors,  their  suc- 
cessors or  assigns,  agent  or  agents,  and  without  paying  any  rate  or 
duty  for  the  same ;  and  so  as  such  boat  or  boats  be  not  above  seven  feet 
in  breadth,  and  do  not  pass  througli  any  lock  to  be  made  on  the  said 
navigation,  without  the  consent  of  the  said  company  of  proprietoi*s, 
their  successors  or  assigns,  or  be  employed  for  carrying  any  goods, 
wares  or  merchandise  to  market  or  for  sale,  or  any  person  or  persons 
for  hire;  and  so  as  the  same  shall  not  obstruct  or  prejudice  the  said 
navigation,  or  the  towing  paths,  or  obstruct  any  boats  passmg  upon 
the  said  navigation  liable  to  pay  the  rates  or  duties  aforesaid;  and 
the  owner  of  all  such  pleasure  boats,  or  other  boats,  shall,  in  his  own 
lands  or  grounds,  make  convenient  places  for  such  boats  to  lie  in,  and 
shall  not  suffer  them  to  be  moored  or  remain  upon  the  said  canal." 

The  defendant  was  the  landlord  of  an  inn  at  Aldershot  adjoining 
the  canal,  and  his  premises  abutted  on  the  canal  bank.  The  plaintiff, 
who  was  a  boat  proprietor,  also  occupied  premises  at  Aldershot  on 
the  bank  of  the  canal,  which  he  held  under  a  demise  from  the  com- 
pany of  proprietors,  and  by  virtue  of  the  demise  claimed  the  exclusive 
right  of  letting  out  pleasure  boats  for  hire  upon  the  canal,  which  was 
the  right  the  defendant  was  alleged  to  have  disturbed. 

The  lease  under  which  the  plaintiff  claimed  this  right  was  dated 
the  29th  of  December,  1860,  and  by  it,  in  consideration  of  the  rents, 
covenants  and  agreements  therein  contained,  the  said  company  of 
proprietors  demised  to  the  plaintiff,  under  their  common  seal,  for  the 
term  of  seven  years  from  the  24th  of  June,  1860,  at  the  yearly  rent  of 
251.,  "All  that  piece  or  parcel  of  land  containing  nineteen  poles  or 
thereabouts,  adjoining  Aldershot  wharf,  situate  in  the  parish  of  Al- 
dershot aforesaid,  and  the  wooden  cottage  or  tenement,  boathouse, 
and  all  other  erections  now  or  hereafter  being  or  standing  thereon, 
etc."  (describing  the  premises  by  boundaries,  and  by  reference  to  a 
plan),  "together  with  the  appurtenances  to  the  same  premises  be- 
longing. And  also  the  sole  and  exclusive  right  or  liberty  to  put  or  use 
boats  on  the  said  canal,  and  let  the  same  for  hire  for  the  purposes  of 
pleasure  only.''  The  lease  contained  various  covenants  framed  with 
the  object  of  preventing  any  interference  by  the  plaintiff's  pleasure 


CHAP,  n.]  HILL   V.    TUPPER.  767 

boats  with  the  na^^gation  of  the  canal,  and  a  proviso  for  re-entry  for 
any  breach  of  the  covenants. 

The  evidence  of  the  defendant  was  at  variance  with  that  adduced 
on  behalf  of  the  plaintiff  upon  the  question  whether  the  defendant 
had  ever  let  out  boats  upon  the  canal  for  hire,  in  the  sense  of  a 
direct  money  pajTiient.  The  defendant  did  not  deny  that  he  kept 
pleasure  boats,  and  used  them  upon  the  canal,  but  stated  that  he 
kept  them  for  the  use  of  his  family;  he  admitted,  however,  that  gen- 
tlemen had  come  from  time  to  time  to  his  inn  and  used  these  boats 
for  fishing  and  bathing. 

The  learned  judge  reserved  leave  to  move  to  enter  a  nonsuit  or 
verdict  for  the  defendant,  and  left  to  the  jury  the  question  whether 
the  defendant  had  obtained  any  pecuniar>^  advantage  from  the  boats. 
The  jury  found  a  verdict  for  the  plaintiff;  damages,  a  farthing. 

Hance,  on  a  former  day  in  this  tenn,  obtained  a  rule  nisi  to  enter  a 
nonsuit  or  verdict  for  the  defendant  on  the  ground,  first,  that  the 
Company  of  Proprietors  of  the  Basingstoke  Canal  Na\dgation  had 
no  power  to  grant  the  exclusive  right  claimed;  secondly,  that,  if  the 
grant  were  good,  the  action  would  not  lie  by  the  plaintiff  against  the 
defendant  for  the  alleged  infringement  of  the  right:  or  for  a  new 
trial  on  the  ground  of  misdirection  by  the  judge  in  directing  the  jury 
that  the  defendant  was  liable  if  he  obtained  any  pecuniary  advantage 
from  the  boats. 

Pollock,  C.B.  We  are  all  of  opinion  that  the  rule  must  be  abso- 
lute to  enter  the  verdict  for  the  defendant  on  the  second  plea.  After 
the  veiy  full  argument  which  has  taken  place,  I  do  not  think  it  neces- 
sary to  assign  any  other  reason  for  our  decision  than  that  the  case  of 
Ackroyd  v.  Smith,  10  C.B.  164,  expressly  decided  that  it  is  not  com- 
petent to  create  rights  unconnected  with  the  use  and  enjoyment  of 
land,  and  annex  them  to  it  so  as  to  constitute  a  property  m  the 
grantee.  This  grant  merely  operates  as  a  licence  or  covenant  on  the 
part  of  the  gi'antors,  and  is  binding  on  them  as  betw^een  themselves 
and  the  grantee,  but  gives  him  no  right  of  action  in  his  own  name  for 
any  infringement  of  the  supposed  exclusive  right.  It  is  argued  that, 
as  the  owner  of  an  estate  may  grant  a  right  to  cut  turves,  or  to  fish 
or  hunt,  there  is  no  reason  why  he  may  not  grant  such  a  right  as  that 
now  claimed  by  the  plaintiff.  The  answer  is,  that  the  law  will  not 
allow  it.  So  the  law  will  not  pennit  the  owner  of  an  estate  to  grant  it 
alternately  to  his  heirs  male  and  heirs  female.  A  new  species  of  in- 
corporeal hereditament  cannot  be  created  at  the  will  and  pleasure  of 
the  owner  of  property;  but  he  must  be  content  to  accept  the  estate 
and  the  right  to  dispose  of  it  subject  to  the  law  as  settled  by  decisions 
or  controlled  by  act  of  parliament.  A  grantor  may  bind  himself  by 
covenant  to  allow  any  right  he  pleases  over  his  property,  but  he  can- 
not annex  to  it  a  new  incident,  so  as  to  enable  the  grantee  to  sue  in 
his  own  name  for  an  infringement  of  such  a  limited  right  as  that  now 
claimed. 


768  HILL    V.    TUPPER.  [cHAP.  II. 

Martin,  B.  I  am  of  the  same  opinion.  This  grant  is  perfectly 
vaHd  as  between  the  plaintiff  and  the  canal  company;  but  in  order 
to  support  this  action,  the  plaintiff  must  establish  that  such  an  estate 
or  interest  vested  in  him  that  the  act  of  the  defendant  amounted  to 
an  eviction.  None  of  the  cases  cited  are  at  all  analogous  to  this,  and 
some  authority  must  be  produced  before  we  can  hold  that  such  a 
right  can  be  created.  To  admit  the  right  would  lead  to  the  creation 
of  an  infinite  variety  of  interests  in  land,  and  an  indefinite  increase 
of  possible  estates.  The  only  consequence  is  that,  as  between  the 
plaintiff  and  the  canal  company,  he  has  a  perfect  right  to  enjoy  the 
advantage  of  the  covenant  or  contract ;  and,  if  he  has  been  disturbed 
in  the  enjojTnent  of  it,  he  must  obtain  the  permission  of  the  canal 
company  to  sue  in  their  name.  The  judgment  of  the  Court  of  Com- 
mon Pleas  in  Ackroyd  v.  Smith,  10  C.B.  164,  and  of  Lord  Brougham, 
C,  in  Keppell  v.  Bailey,  2  Myl.  &  K.  517,  535,  are,  in  the  absence 
of  any  case  to  the  contrary,  ample  authority  for  our  present  deci- 
sion. 

Note.  —  In  Keppell  v.  Bailey,  2  M.  &  K.  517,  Lord  Chancellor 
Broughaivi  said  (p.  535):  "But  it  must  not  therefore  be  supposed 
that  incidents  of  a  novel  kind  can  be  devised  and  attached  to  prop- 
erty, at  the  fancy  or  caprice  of  any  owner.  It  is  clearly  inconvenient 
both  to  the  science  of  the  law  and  to  the  public  weal,  that  such  a 
latitude  should  be  given.  There  can  be  no  harm  in  allowing  the  full- 
est latitude  to  men  in  binding  themselves  and  their  representatives, 
that  is,  their  assets  real  and  personal,  to  answer  in  damages  for 
breach  of  their  obligations.  This  tends  to  no  mischief,  and  is  a  rea- 
sonable liberty  to  bestow;  but  great  detriment  would  arise  and 
much  confusion  of  rights,  if  parties  were  allowed  to  invent  new  modes 
of  holding  and  enjoying  real  property,  and  to  impress  upon  their 
lands  and  tenements  a  peculiar  character,  which  should  follow  them 
into  all  hands,  however  remote.  Every  close,  every  messuage,  might 
thus  be  held  in  a  several  fashion;  and  it  would  hardly  be  possible, to 
know  what  rights  the  acquisition  of  any  parcel  conferred,  or  what 
obligations  it  imposed." 

In  Ackroyd  v.  Smith,  10  C.  B.  164,  Cresswell,  J.,  said  (p.  188) 
that  the  owner  of  land  could  not  "render  it  subject  to  a  new  species 
of  burthen,  so  as  to  bind  it  in  the  hands  of  an  assignee." 

In  International  Tea  Stores  Co.  v.  Hohhs,  [1903]  2  Ch.  165,  Farwell, 
J.,  said  (p.  172)  that  a  right  to  enjoy  the  gardens  and  park  of  another 
was  not  known  to  the  law  as  an  easement.  In  Attorney-General  v. 
Antrohus,  [1905]  2  Ch.  188,  the  Attorney-General  claimed  that  the 
public  had  a  right  to  come  upon  certain  premises  owned  bj^  the 
defendant,  as  constituting  "a  national  monument  of  great  interest." 
Farwt^ll,  J.,  held  (p.  198)  that  jus  spatiandi  was  not  known  to  the 
law  "as  a  possible  subject-matter  of  grant  or  prescription." 


CHAP,  n.]  CASTNER    V.    RIEGEL.  769 

In  Norcross  v.  James,  140  Mass.  188,  Holmes,  J.,  said  (p.  191): 
"  The  question  remains,  whether,  even  if  we  make  the  further 
assumption  that  the  covenant  was  valid  as  a  contract  between  the 
parties,  it  is  of  a  kind  which  the  law  permits  to  be  attached  to  land 
in  such  a  sense  as  to  restrict  the  use  of  one  parcel  in  all  hands  for 
the  benefit  of  whoever  may  hold  the  other,  whatever  the  principle 
invoked.  For  equity  will  no  more  enforce  every  restriction  that  can 
be  devised  than  the  common  law  will  recognize  as  creating  an  ease- 
ment every  grant  purporting  to  limit  the  use  of  land  in  favor  of  other 
land.  The  principle  of  poUcy  applied  to  affirmative  covenants 
applies  also  to  negative  ones.  They  must  "touch  or  concern,"  or 
"extend  to  the  support  of  the  thing"  conveyed.  5  Rep.  16  a,  24  b. 
They  must  be  "for  the  benefit  of  the  estate."  Cockson  v.  Cock,  ubi 
supra.  Or,  as  it  is  said  more  broadly,  new  and  unusual  incidents 
cannot  be  attached  to  land,  by  way  either  of  benefit  or  of  burden. 
Keppell  v.  Bailey,  2  Myl.  &  K.  517,  535.  Ackroyd  v.  Smith,  10  C.  B. 
164.  Hill  v.  Tupper,  2  H.  &  C.  121." 

But  the  easements  which  the  law  permits  are  various.  Among  the 
well-established  easements  are  rights  of  way,  rights  of  drainage,  and 
rights  of  support  for  party  walls.  Rights,  incident  to  the  ownership 
of  land  (see  Book  VI,  supra),  may  be  abridged  or  extinguished,  and 
such  abridgment  or  extinction  is  said  to  create  an  easement  against 
the  land. 

An  easement  to  have  a  sign-post  on  a  common  near  the  public- 
house  was  recognized  in  Hoare  v.  Metropolitan  Board  of  Works,  L.  R. 
9  Q.  B.  296;  and  an  easement  to  deposit  and  hoist  merchandise  was 
recognized  in  Richardson  v.  Pond,  15  Gray  (Mass.)  387. 


CASTNER  V.   RIEGEL. 

54  N.J.  L.  498.     1892. 

On  certiorari  removing  to  this  court  an  order  made  by  two  of  the 
township  committee  of  the  township  of  Washington,  Warren  County, 
determining  and  directing  that  a  part  of  certain  line  fence  on  the  line 
between  the  lands  of  the  parties  should  be  made  and  maintained  by 
the  prosecutor,  Emmeline  Castner,  and  another  part  thereof  should 
be  made  and  maintained  by  the  defendant  Riegel. 

Magie,  J.  Prosecutrix  attacks  the  order  brought  before  us  by  this 
writ  upon  the  ground  that  the  members  of  the  township  committee 
were  without  jurisdiction  to  make  it.  Her  contention  is  that  the 
defendant  Riegel  is  bound  by  law  to  make  and  perpetually  maintain 
a  fence  along  the  whole  of  the  line  in  question,  dividing  his  lands  from 
hers,  and  that,  consequently,  the  provisions  of  the  Fence  Act  relative 
to  the  determination  of  the  part  of  a  division  fence  to  be  made  and 


770  CASTNER   V.    RIEGEL.  [cHAP.  TT. 

maintained  by  each  of  two  owners  bound  to  make  and  maintain 
it  equally  cannot  apply. 

The  Fence  Act  imposes  on  the  owners  of  adjoining  lands  the  duty 
of  making  and  maintaining  a  just  proportion  of  the  partition  fence, 
except  such  persons  as  shall  choose  to  let  their  adjoining  lands  lie 
vacant  and  open.  The  act  provides  that  under  certain  circumstances 
two  of  the  township  committee  may  detennine  what  part  of  the  parti- 
tion fence  shall  be  maintained  by  each  owner;  but  if  one  of  the  owners 
is  under  obligation  to  make  and  maintain  the  whole  fence,  it  is  obvi- 
ous that  the  statute  is  inapplicable,  and  there  will  be  no  power  to 
divide  the  fence. 

Such  was  the  interpretation  given  to  a  similar  law  in  New  York. 
Adams  v.  Van  Alstyne,  25  N.Y.  232. 

It  becomes  necessary,  therefore,  to  inquire  whether  the  obligation 
to  make  and  maintain  the  whole  of  the  partition  fence  in  question 
rests  upon  the  defendant  Riegel.  The  contention  of  prosecutrix  is 
that  he  and  those  under  whom  he  claims  —  owners  of  the  lands 
adjoining  hers,  and  separated  by  the  fence  —  have,  for  the  period  of 
about  thirty-eight  years,  continually  amended  and  maintained  said 
fence,  and  that  thereby  a  right  in  the  nature  of  an  easement  has  been 
acquired  in  favor  of  her  lands,  and  a  duty  has  been  imposed  upon  the 
lands  now  owned  by  him  and  their  owners  to  continually  amend  and 
maintain  the  fence. 

That  an  obligation  to  maintain  partition  fences  might  arise  by 
prescription  which  could  be  enforced  by  the  writ  curia  clandenda  at 
common  law,  does  not  admit  of  doubt.  This  right  was  said  by  Gale 
&  Whatley  to  be  a  spurious  kind  of  easement.  Gale  &  W.  Easm.  201, 
202.  The  easement  seems  to  be  founded  upon  the  duty  which  at 
common  law  required  the  owner  of  a  close,  at  his  peril,  to  keep  his 
cattle  thereon,  and  to  prevent  them  from  trespassing  on  an  adjoin- 
ing close;  and  when  the  owner  of  the  latter  erected  a  fence  for  his 
protection  and  maintained  it  for  the  prescriptive  period,  he  was 
deemed  to  have  discharged  his  neighbor  from  his  original  duty  and 
to  have  become  bound  to  protect  his  own  close  by  some  grant  or 
agreement,  the  evidence  of  which  was  lost  by  lapse  of  time.  But  in 
whatever  way  the  right  arose  there  can  be  no  question  that  it  did 
arise  by  prescription  at  common  law.  Com.  Dig.  Droit  M.  1  &  M.  2; 
Vin.  Abr.,  tit.  "Fences"  E.;  Washb.  Easm.  634;  Ivins  v.  Acherson,  9 
Vroom  220;  Lawrence  v.  Jenkins,  L.  R.  (8  Q.  B.)  274. 

Did  this  feature  of  the  common  law  become  a  part,  of  the  law  of 
New  Jersey,  and  has  it  been  modified  or  repealed  by  our  legislation 
concerning  fences?  Those  questions  do  not  seem  to  have  been 
hitherto  mooted  in  our  courts. 

In  other  states,  with  similar  laws,  such  questions  have  been  dealt 
with.  The  earliest  case  is  Rust  v.  Low,  6  Mass.  90,  and  the  opinion  is 
by  Chief  Justice  Parsons.    It  was  held  that,  since,  at  the  original 


CHAP.  II.j  CASTNER   V.    RIEGEL.  771 

settlement  of  the  country,  no  prescription  to  fence  could  exist,  the 
common  law  authorizing  the  writ  of  curia  claudenda,  being  inappli- 
cable to  the  state  of  the  colony,  was  never  introduced  into  Massachu- 
setts. But  it  was  also  held  that,  since  under  their  statute  (which 
closely  resembles  our  Fence  Act)  adjoining  owners  were  bound  to 
make  and  maintain  an  equal  part  of  the  division  fence,  and  could 
agree  upon  the  parts  to  be  made  and  maintained  by  each  respec- 
tively, or  in  default  of  an  agreement  could  procure  an  assignment 
of  the  part  each  should  make  and  maintain,  and  since  the  country 
had  then  been  settled  long  enough  to  allow  the  time  necessary  to 
prove  a  prescription,  and  ancient  assignments  or  agreements  might 
have  existed  and  been  lost,  a  right  by  prescription  (which  at  com- 
mon law  was  presumed  to  stand  on  a  lost  grant)  might  be  set  up 
and  proved  by  ancient  usage. 

The  doctrine  of  that  case  was  appHed  in  Binney  v.  Proprietors, 
5  Pick.  503,  and  approved  in  Thayer  v.  Arnold,  4  Mete.  589,  and  in 
Branson  v.  Coffin,  108  Mass.  175. 

Evidence  that  a  fence  was  originally  erected  by  one  owTier  of  the 
land  it  adjoined  and  maintained  for  thirty  years  by  his  grantees  was 
held  to  require  a  presumption  of  an  original  grant  or  agreement 
establishing  a  division  of  the  fence  and  imposing  an  obligation  to 
maintain.  Knox  v.  Tucker.  48  Me.  373.  A  charge  that  if  the  owners 
of  land  or  those  from  whom  they  derived  title  had,  for  a  sufficient 
period,  severally  maintained  well-defined  portions  of  a  di\asion  fence, 
each  repairing  a  part  and  recognizing  his  obligation  to  do  so,  a 
division  by  prescription  was  estabhshed,  was  held  correct.  Harlow 
V.  Stinson,  60  Me.  347. 

A  valid  prescription  by  which  an  owner  of  land  would  become 
bound  to  maintain  pei-petually  the  whole  of  a  division  fence  between 
him  and  an  adjoining  owner  was  recognized  by  Judge  Denio  in  the 
New  York  Court  of  Appeals,  but  it  was  held  that  no  obligation  to 
maintain  vv^ould  be  established  by  proof  that  one  owner  had  main- 
tained for  any  length  of  time  an  equal  or  just  proportion  of  a  division 
fence.  Adams  v.  Van  Alstyne,  ubi  supra. 

In  the  courts  of  New  Hampshire  and  Connecticut  the  power  to 
acquire  such  a  right  in  the  maintenance  of  a  division  fence  by  user  or 
prescription  is  denied,  but  in  the  latter  state  the  common  law  obliga- 
tion of  owner  to  keep  upon  their  own  land  their  cattle  no  longer 
exists.  Glidden  v.  Towle,  31  N.H.  147;  Wright  v.  Wright,  21  Conn. 
330. 

The  true  doctrine  upon  this  subject,  in  my  judgment,  lies  between 
the  extremes  indicated  by  the  decisions  refen-ed  to. 

A  right  in  favor  of  the  owner  of  one  of  two  adjoining  tracts  of  land 
to  have  the  division  fence  perpetually  maintained  for  the  whole  or 
a  specified  part  of  the  boundary  line  by  the  owner  of  the  other  tract, 
may  undoubtedly  be  created  by  grant  or  agreement.  Such  a  right  is 


772  CASTNER    V.    RIEGEL.  [cHAP,  II. 

in  the  nature  of  an  easement,  and  is  a  burden  imposed  on  a  servient 
tenement  in  favor  of  a  dominant  tenement. 

Easements  may  be  established  by  proof  of  a  continuous,  uninter- 
rupted and  adverse  user  in  this  state  for  that  period  of  time  which, 
by  analogy,  now  suffices  for  what  may  yet  be  called  prescription,  \'iz., 
twenty  years.  Lehigh  Valley  v.  McFarlan,  14  Vroom  605.  Such  user 
affords  in  general  a  conclusive  presumption  of  a  lost  grant. 

The  difficulty  in  applying  to  the  case  of  a  boundary  fence  the  doc- 
trine of  easements  acquired  by  user  is  obvious. 

The  common  law  rule  respecting  the  protection  of  lands  by  fences 
has  been  here  modified  by  the  statute,  which  imposes  on  owners  of 
lands  lying  adjacent  an  obligation  and  duty  to  maintain  each  a  just 
proportion  of  a  division  fence.  WTiat  part  each  should  make  and 
maintain  may  be  fixed  by  their  mutual  agreement  or  by  the  deter- 
mination of  two  of  the  township  committee,  made  in  the  manner 
prescribed. 

When  for  a  period  of  over  twenty  years  the  owner  of  one  of  two 
adjoining  tracts  has  continuously,  without  interruption  and  as  of 
duty,  repaired  and  maintained  the  whole  of  the  division  fence,  in 
my  judgment  a  presumption  would  arise  that  he  or  those  under 
whom  he  derived  title  were,  as  owners  of  a  servient  tenement,  bound 
to  perpetually  make  and  maintain  the  fence.  The  existence  of  a 
foraier  and  lost  agreement  to  do  so  may  be  inferred,  and  no  other 
inference  would  be  consistent  with  the  circumstances. 

But  the  difficulty  arises  when  the  owner  of  one  tract  has  main- 
tained in  the  manner  mentioned  only  a  part  of  the  division  fence. 
An  obligation  to  perpetually  maintain  a  specific  portion  of  such  a 
fence  may  be  acquired  and  imposed  by  grant  or  agreement.  But  will 
the  continuous  maintenance  for  twenty  years  of  only  a  part  of  the 
division  fence  —  no  grant  or  agi'eement  being  actually  in  existence  — 
justify  a  presumption  of  an  obligation  to  perpetually  maintain  that 
portion? 

If  by  the  statute  the  determination  of  two  of  the  township  com- 
mittee fixing  the  portion  of  the  division  fence  to  be  maintained  by 
each  owner  is  designed  to  fix  the  obligations  of  the  owners  forever 
without  reference  to  subsequent  changes  in  owTiership  and  the  intro- 
duction of  new  division  lines,  then  a  twenty  years'  maintenance  of  a 
part  of  the  fence  would  justify  the  presumption  of  an  obligation  to 
maintain  it,  arising  by  an  agreement  or  grant  in  respect  to  that 
part. 

But  such  a  construction  of  the  Fence  Act  would,  in  my  judgment, 
be  indefensible.  The  subject  of  the  act  is  the  boimdary  fence  of 
adjoining  lands  of  different  owners.  It  obliges  them  to  maintain  such 
a  fence  in  just  proportion,  to  be  fixed  by  agreement  or  determination 
of  the  township  committee.  When  one  of  two  such  adjoining  tracts 
is  subdivided  by  grant  so  that  the  boundary'  of  the  granted  tract 


CHAP.  II.]  CASTNER   V.    RIEGEL.  773 

adjoins  that  of  the  tract  undivided,  there  arises  a  new  subject  for  the 
operation  of  the  act,  viz.,  the  boundary  fence  of  adjoining  lands  of 
different  owners.  And  since  the  act  requires  the  fixing  of  a  just  pro- 
portion of  fence  to  be  maintained,  it  is  plain  that  the  original  agree- 
ment or  determination  must  cease  to  operate,  to  be  replaced  by  a 
new  agreement  or  determination  in  respect  to  the  boundary  which 
remains  between  the  original  owners.  Any  other  construction  would 
be  opposed  to  the  spirit  of  the  act,  and  would  produce  great  confu- 
sion and  injustice.  The  construction  does  no  violence  to  the  language 
of  the  act. 

The  result  is  that  the  continued  maintenance  for  any  length  of  time 
of  a  part  only  of  a  division  fence  must  be  deemed  to  be  referable,  in 
the  absence  of  proof  of  an  express  agreement,  to  an  agreement  or  an 
assignment  made  mider  the  statute,  and  no  presumption  will  arise 
of  a  perpetual  obligation  to  maintain  that  portion  of  the  fence. 

This  was  the  conclusion  arrived  at  in  Adams  v.  Van  Alsiyne,  ubi 
supra. 

The  construction  given  to  the  Fence  Act  harmonizes  with  the  view 
that  the  agreement  of  adjoining  owners  respecting  division  of  the 
fence  between  them  may  be  by  parol.  Ivins  v.  Ackerson,  9  Vroom  220. 

The  contention  of  prosecutrix  that  defendant  Riegel  is  shown  by 
the  evidence  to  be  under  a  peipetual  obligation  to  maintain  the  fence 
which  was  divided  by  the  determination  of  the  township  committee 
cannot  prevail. 

The  evidence  shows  that  the  lands  of  prosecutrix  and  Riegel  adjoin 
for  a  distance  of  about  one  hundred  and  eighty-three  perches.  The 
fence  which  the  committee  divided  extends  for  less  than  one  hundred 
and  eighteen  perches.  It  is  therefore  only  a  part  of  the  fence  which 
the  statute  requires  both  adjoining  owners  to  maintain.  The  proof 
that  Riegel  and  those  under  whom  he  claims  have  continuously,  and 
as  if  under  duty  to  do  so,  maintained  for  over  thirty  years  this  part 
of  the  fence,  does  not  establish  a  right  in  the  nature  of  an  easement 
for  the  continued  maintenance  thereof. 

The  proofs  raise  only  a  presumption  that  previously  by  agreement 
or  determination  the  whole  boundary  line  had  been  divided  and  the 
part  which  is  now  in  question  had  been  taken  by  or  assigned  to  the 
owner  of  the  land  now  Riegel's.  Nor  is  this  presumption  affected 
by  the  fact  that  the  part  so  maintained  considerably  exceeds  the 
remainder  of  the  boundary  fence.  The  act  requires  each  owner  to 
make  and  amend  a  just  proportion  of  the  fence,  and  in  declaring  that 
it  shall  be  equally  divided  requires  regard  to  be  had  to  the  quantity 
of  fence  necessary,  and  other  conveniences  of  fencing. 

But  the  conclusion  arrived  at  on  the  proofs  is  fatal  to  the  jurisdic- 
tion of  the  township  committee,  for  they  establish  either  an  agree- 
ment on  the  part  of  the  owners  of  the  Riegel  tract  to  make  and 
maintain  the  fence  in  nuestion  as  the  inst  prnno'-^inn  cf  the  whole 


774  ARNOLD    V.    FEE.  [CHAP.  II. 

boundary  fence,  or  a  previous  determination  to  that  effect  under  the 
statutes.  In  either  case  the  committeemen  had  no  right  to  act. 

In  my  judgment,  jurisdiction  to  make  any  determination  in  respect 
to  this  fence  is  also  shown  not  to  exist  by  the  mere  proof  that  it  com- 
prises only  a  part  of  the  whole  division  fence  between  the  lands  of  the 
parties.  The  act  plainly  contemplates  a  division  of  the  whole  fence, 
and  neither  party  can  invoke  its  aid  to  divide  it  by  piecemeal. 


ARNOLD  V.   FEE. 

148  N.Y.  214.     1896. 

Appeal  from  judgment  of  the  General  Teim  of  the  Supreme  Court 
in  the  fifth  judicial  department,  entered  upon  an  order  made  at  the 
June  Term,  1895,  which  affirmed  a  judgment  in  favor  of  defendants, 
entered  upon  a  decision  of  the  court  at  Special  Term,  sustaining  a 
demurrer  to  the  complaint. 

The  complaint  asks  judgment,  in  substance,  restraining  the  defend- 
ants from  using  a  certain  alley,  except  for  the  ingress  and  egress  of 
themselves  and  persons  having  legitimate  business  with  them,  or  the 
occupants  of  buildings  upon  the  premises.  From  the  allegations  of 
the  complaint,  it  appears  that  one  Ulrich,  owning  a  tract  of  land  upon 
North  Avenue  and  Franklin  Street,  in  the  city  of  Rochester,  con- 
veyed to  one  Hahn  a  portion  thereof  fronting  upon  Franklin  Street 
and  which  was  bounded  upon  its  northwesterly  side  by  an  alley  lead- 
ing from  Franklin  Street  to  what  were  known  as  the  Palace  Stables. 
The  northwesterly  boundary  line  extended  along  the  alley  for  98 
feet.  The  deed  of  conveyance  contained  the  grant  of  "the  pri\alege 
of  the  main  alley  leading  to  the  Palace  Stables,  so  called,  as  an  ease- 
ment for  ingress  and  egress  along  the  north  line  or  alley  line  of  the 
premises  hereby  deeded,  for  the  distance  of  ninety-eight  feet  west 
from  Franklin  Street  and  no  more  and  for  no  other  purpose."  About 
the  time  of  this  conveyance  to  Hahn,  Ulrich  conveyed  the  remainder 
of  the  tract  to  one  Perry  subject  to  the  easement  mentioned.  By 
various  mesne  conveyances,  the  premises  described  in  the  deed  to 
Hahn  have  been  conveyed  to  the  defendants  and  those  described  in 
the  deed  to  Perry  to  the  plaintiffs.  At  the  time  of  the  making  of 
these  deeds,  a  brick  house  stood  upon  the  property  conveyed  to 
Hahn,  some  distance  back  from  Franklin  Street,  with  its  north- 
westerly wall  upon  the  line  of  the  alley.  Upon  the  southerly  line  of 
the  alley  was  a  sidewalk,  and  a  door  opened  from  the  house  upon  it. 
This  sidewalk  led  to  the  Palace  Stables  and  was,  also,  used  by  the 
occupants  of  the  brick  house  for  the  purpose  of  ingress  and  egi-ess  to 
their  premises.  Subsequently,  the  defendants  erected  an  addition 
to  the  house,  so  as  to  extend  it  to  Franklin  Street,  and  the  premises 


CHAP.  II.]  AENOLD    V.   FEE.  775 

were  used  as  a  restaurant,  or  beer  garden.  Later,  the  defendants 
built  upon  the  rear  thereof,  professedly  as  an  addition  to  the  restau- 
rant. The  complaint  then  charges  that  the  defendants  changed  the 
purposes  for  which  the  premises  were  used;  that  they  intended  to 
convert  the  same  into  a  farmers'  hotel  and  to  make  of  the  structure 
added  to  the  rear  of  the  original  building  a  barn,  or  stable,  for  the 
accommodation  of  hotel  customers;  that  the  defendants  claimed  the 
right  to  use  the  whole  of  the  alley  for  the  ingress  and  egress  of  car- 
riages and  wagons  to  said  barn  or  stable,  and  that  such  threatened 
use  of  the  alley  would  damage  the  plaintiffs,  who  maintained  upon 
their  premises  large  and  valuable  buildings  for  the  purpose  of  sta- 
bling horses  and  storing  vehicles  and  which  their  customers  reach 
by  passing  along  the  alley  from  Franklin  Street. 

The  defendants  demurred  to  the  complaint,  for  insufficiency  of 
facts  to  constitute  a  cause  of  action,  and  the  demurrer  w^as  sustained 
at  SpecipJ  Term.  Upon  appeal  by  the  plaintiffs  to  the  General  Term, 
the  interlocutory  judgment  entered  in  favor  of  the  defendants  was 
affirmed.  The  plaintiffs  now  appeal  to  this  court;  the  General  Term 
having  certified  the  case  to  be  one  of  sufl&cient  importance  to  render 
a  decision  by  us  desirable. 

Gra-Y,  J.  The  dispute  between  the  plaintiffs  and  the  defendants  is 
over  the  true  construction  which  is  to  be  given  to  the  language  of 
the  gi-ant  in  the  deed  to  Hahn,  the  defendants'  predecessor  in  title, 
whereby  an  easement  in  the  alleyway  was  reserved  to  the  grantee. 
The  gTant  is  of  "the  privilege  of  the  main  alley  leading  to  the  Palace 
Stables,  so  called,  as  an  easement  for  ingress  and  egress  along  the 
north  line  or  alley  line  of  the  premises  hereby  deeded,  for  the  distance 
of  ninety-eight  feet  west  from  Franklin  Street  and  no  more  and  for 
no  other  purpose."  We  are  asked  to  construe  this  grant  as  one 
merely  of  the  privilege  to  use  the  sidewalk  of  the  alleyway  for  ingress 
and  egress  along  the  line  of  defendants'  property,  and  to  hold  that  a 
change  in  the  mode  of  the  user  is  prohibited  and  would  cause  an 
extinguishment  of  the  privilege  or  easement.  The  request  assumes, 
and  such  is  the  argument,  that  with  the  grant  of  the  privilege  runs 
some  limitation  upon  its  enjoyment.  This  limitation  is  said  to  be 
found  in  the  description  of  the  privilege,  commencing  with  the  words 
"as  an  easement  for  ingress  and  egress,  etc."  These  "additional 
words,"  as  the  learned  counsel  for  the  plaintiffs  terais  them,  seem  to 
furnish  some  ground  for  his  argument;  but,  in  our  judgment,  they 
cannot  be  so  narrowly  construed  without  importing  into  the  lan- 
guage employed  an  element  of  intention,  which  is  at  variance  with 
the  apparent  general  purpose  of  the  grant  and  which  the  situation 
of  the  parties  at  the  time  seems  rather  to  deny.  These  woixls  rather 
emphasize  an  intention  of  the  original  grantor  that,  while  the  alley- 
way might  be  used  by  the  owner  of  the  dominant  tenement,  that  use 
should  be  confined  to  the  purpose  of  passage  to  and  from  Franklin 


776  ARNOLD    V.    FEE.  [CHAP.  II. 

Street  and  to  the  extent  that  it  might  be  needed  by  the  property 
bordering  upon  the  way. 

The  language,  in  which  the  grant  of  the  privilege  of  the  alleyway 
is  couched,  is  of  too  general  a  nature  to  warrant  the  construction  that 
the  use  was  to  be  restricted  to  any  particular  mode  of  ingress  or 
egress.  The  words  ingress  and  egress  are  as  applicable  to  the  pas- 
sage of  horses  and  carriages,  as  they  are  to  the  passage  of  foot 
passengers.  The  alleyway  extended  from  Franklin  Street  to  a  point 
in  the  rear  of  the  defendants'  property  and  the  concluding  words  of 
the  grant,  "and  no  more  and  for  no  other  purpose,"  have  obvious 
reference  to  the  extent  in  length  of  the  alleyway,  which  should  be 
properly  available  to  the  defendants  for  the  use  of  the  same  for  the 
purpose  of  ingress  and  egress. 

Nothing  in  the  language  of  this  grant  conveys  the  idea  of  an  in- 
tended limitation  upon  the  existence  and  continuance  of  the  pri\'i- 
lege,  in  the  event  that  the  defendants  should  change  the  character 
or  uses  of  their  property  bordering  thereupon;  so  long  as  the  alley- 
way is  made  use  of  for  the  same  pui-pose  as  before,  that  is  to  say,  in 
order  to  pass  to  and  from  Franklin  Street.  The  cases  of  Allan  v. 
Gomme,  11  Ad.  &  E.  759,  and  Henning  v.  Burnet,  8  Exch.  R.  187,  to 
which  the  learned  counsel  for  the  plaintiffs  refers,  are  not  authorities 
which  conflict  with  the  construction  which  we  think  should  be  given 
to  the  language  of  this  grant.  The  former  case  related  to  the  reserva- 
tion of  a  right  of  way  to  a  stable  and  the  loft  over  the  same  and  the 
space  under  the  loft,  then  used  as  a  woodhouse.  Lord  Denman,  who 
delivered  the  opinion,  said:  ''The  present  case  does  not,  however, 
depend  upon  the  mode  of  using  the  way,  but  upon  the  legal  effect  of 
the  reservation.  Upon  that  we  are  of  opinion  that,  under  the  terms 
of  this  deed,  the  defendant  is  not  entitled  to  have  the  right  of  way 
claimed,  but  that  he  is  to  be  confined  to  the  use  of  the  way  to  a  place 
which  should  be  in  the  same  predicament  as  it  was  at  the  time  of  the 
making  the  deed."  In  the  other  case  of  Henning  v.  Burnet,  the  grant 
was  of  a  way  to  a  dwelling  house,  coach  houses  and  stables,  and  the 
question  was  whether  the  defendant  was  justified  in  using  the  way 
to  reach  a  certain  field.  In  each  case,  a  limitation  was  imposed,  with 
respect  to  the  privilege  of  the  way,  which  is  not  to  be  found  in  the 
present  case;  where  the  grant  is  without  any  other  hmitation  than 
a  restriction  of  the  use  of  the  alley  for  the  purposes  of  ingress  and 
egress.  It  is  unnecessary  for  us  to  say  whether,  if  the  privilege  is  to 
use  a  way  to  accomplish  a  certain  purpose,  as  in  the  English  cases, 
the  privilege  might  lawfully  be  extended  to  accomplish  other  pur- 
poses, though  not  effecting  a  change  in  the  mode  of  use  of  the  way. 
That  is  not  this  case.  We  have  here  a  case  where  the  defendants  are 
entitled  to  an  easement  in  the  alleyway  and  subject  to  which  the 
plaintiffs  became  the  owners  of  the  adjoining  property.  In  the  general 
language,  in  which  the  easement  was  granted,  we  find  no  limitation 


1 


CHAP.  II.]  PARKS    V.    BISHOP.  777 

upon  the  use  of  the  way,  in  so  far  as  it  is  for  ingress  and  egress.  The 
easement  cannot  be  extinguished  by  changes  in  the  uses  and  occu- 
pancy of  the  defendants'  property,  by  reason  of  which  the  passage- 
way may  be  more  frequently  used  by  foot  passengers,  as  weD  as  by 
horses  and  vehicles,  without  importing  into  the  language  of  the  grant 
a  meaning  which  the  words,  standing  by  themselves,  do  not  convey. 
That  we  could  not  do  without  disregarding  a  principle  of  construc- 
tion, which  regards  eveiything  as  passing  by  a  grant  which  is  neces- 
sary to  its  reasonable  enjojonent. 

We  think  the  judgment  appealed  from  should  be  affirmed,  with 
costs;  with  leave,  however,  to  the  plaintiffs  to  amend  their  complaint, 
if  so  advised,  within  twenty  days  after  the  service  of  a  copy  of  the 
order  upon  our  remittitur. 

All  concur,  except  Vann,  J.,  not  sitting. 

Judgment  accordingly. 

Note.  —  See,  accord,  Abbott  v.  Butler,  59  N.H.  317;  Perth  Amboy 
Co.  V.  Ryan,  68  N.J.  L.  474 ;  Benner  v.  Junker,  190  Pa.  423 ;  Newcomen 
V.  Coulson,  L.  R.  5  Ch.  D.  133.  Cf.  Wood  v.  Saunders,  L.  R.  10  Ch. 
App.  582. 


PARKS   V.   BISHOP. 

120  Mass.  340.     1876. 

Bill  in  equity  alleging  that  the  plaintiff  was  the  owner  of  the  fee 
in  the  soil  and  of  a  right  of  way  in  a  passageway  leading  from  Pur- 
chase Street  by  land  of  the  plaintiff  and  to  a  shop  of  the  defendant, 
which  adjoined  the  rear  of  a  store  of  the  defendant  on  Atlantic 
Avenue;  and  praying  that  the  defendant  might  be  restrained  from 
using  the  way  as  appurtenant  to  the  land  on  which  that  store  was 
built,  or  for  the  pui-pose  of  passing,  or  of  carrying  merchandise  or 
other  things,  between  that  store  and  Purchase  Street.  The  answer 
alleged  that  the  defendant  had  acquired  a  right  to  such  use  by 
adverse  possession. 

Hearing  before  Wells,  J.,  who  ordered  an  injunction  to  issue,  and 
reserved  the  case  for  the  consideration  of  the  full  court,  upon  a 
report,  the  material  part  of  which  is  stated  in  the  opinion. 

Gray,  C.J.  The  report  of  the  judge,  before  whom  this  case  was 
heard  in  the  first  instance,  states  the  facts  proved  at  the  hearing,  and 
his  decision  that  the  use  of  the  way  in  question  by  the  defendant,  in 
the  manner  and  for  the  purpose  complained  of,  was  not  justified  by 
any  right  acquired  by  Lakin  (under  whom  the  defendant  claims) 
through  the  use  of  the  way  by  him  as  stated  in  the  report,  and  that  an 
injunction  should  issue,  subject  to  the  revision  and  determination  of 


778  PARKS    V.    BISHOP.  [CHAP.  H. 

the  full  court  upon  the  question,  among  others,  "whether  Lakin, 
upon  the  facts  stated,  had  acquired  such  a  right  of  way  as  to  consti 
tute  a  good  defence."   The  report,  being  on  the  equity  side  of  th 
court,  submits  to  our  revision  all  inferences  of  fact,  as  well  as  conclu- 
sions of  law.   Wright  v.  Wright,  13  Allen,  207,  209;  Stockhridge  Iron 
Co.  V.  Hudson  Iron  Co.,  102  Mass.  45,  47. 

When  a  right  of  way  to  certain  land  exists  by  adverse  use  and 
enjoyment  only,  although  evidence  of  the  exercise  of  the  right  for  a 
single  purpose  will  not  prove  a  right  of  way  for  other  pui-poses,  yet 
proof  that  it  was  used  for  a  variety  of  purposes,  covering  every  pur- 
pose required  by  the  dominant  estate,  in  its  then  condition,  is  evi- 
dence from  which  may  be  inferred  a  right  to  use  the  way  for  all  pur- 
poses which  may  be  reasonably  required  for  the  use  of  that  estate 
while  substantially  in  the  same  condition.  Ballard  v.  Dyson,  1  Taunt. 
279.  Cowling  v.  Higginson,  4  M.  &  W.  245.  Dare  v.  Heathcotc,  25 
L.  J.  (N.  S.)  Exch.  245.  Williams  v.  James,  L.  R.  2  C.  P.  577.  Sloan 
v.  Holliday,  30  L.  T.  (N.S.)  757.  But  if  the  condition  and  character 
of  the  dominant  estate  ai'e  substantially  altered  —  as  in  the  case  of 
a  way  to  carry  off  wood  from  wild  land,  which  is  afterwards  culti- 
vated and  built  upon;  or  of  a  way  for  agricultural  purposes,  to  a 
farm,  which  is  afterwards  turned  into  a  manufactory'  or  divided  into 
building  lots  —  the  right  of  way  cannot  be  used  for  new  pui-poses, 
required  by  the  altered  condition  of  the  property,  and  imposing  a 
greater  burden  upon  the  servient  estate.  Atwater  v.  Bodfish,  11  Gray, 
150.  Willes,  J.,  in  L.  R.  2  C.  P.  582.  Wimbledon  Commons  v.  Dixon, 
1  Ch.  D.  362. 

In  the  present  case,  the  report  states  that  for  more  than  twenty 
years  Lakin  had,  in  the  shop  abutting  upon  the  passageway  in  ques- 
tion, a  steam  engine,  which  was  driven  by  boilers  in  the  larger  build- 
ing on  the  lot  behind,  and  was  used  for  operating  the  machinery  in 
that  building,  the  three  stories  of  which  were  respectively  occupied 
for  a  blacksmith's  shop,  a  carriage  shop,  and  a  paint  shop;  that  there 
was  a  door  in  the  wall  between  the  two  buildings,  which  was  con- 
stantly  used  for  the  purpose  of  passing  between  them  through  the 
engine  room  and  over  the  passageway;  that  the  space  in  the  passage- 
way was  occasionally  used  for  the  purpose  of  setting  tires  upon 
wheels,  in  connection  with  the  work  in  the  shop;  that  all  the  coal  for 
use  under  the  boilers  was  brought  in  through  the  passageway,  and 
deposited  in  the  basement  or  cellar  under  the  engine  room,  until  used 
in  the  regular  course  of  business;  and  that  the  way  was  used  gener- 
ally as  a  back  entrance  or  thoroughfare,  as  convenience  required,  in 
connection  with  the  shops  occupied  by  Lakin,  without  question  or 
objection,  for  more  than  twenty  years. 

These  facts  appear  to  the  court  to  justify  and  require  the  conclu- 
sion that  Lakin  had  acquired  by  prescription  a  right  of  way  for  all 
purposes  reasonably  necessary  for  a  manufactory  upon  the  two  lots, 


CHAP.  II.]  WILLIAMS    V.    JAMES.  779 

and  which,  upon  the  buildings  being  destroyed  by  fire  and  rebuill 
for  a  manufactory  and  storehouse,  he  was  entitled  to  use  for  the  pur- 
pose of  bringing  goods  into  the  smaller  building  abutting  upon  th( 
passageway,  to  be  thence  hoisted  up  into  the  larger  building,  foi 
storage  and  use  therein;  that  there  has  been  no  substantial  alteration 
in  the  condition  or  character  of  the  dominant  estate,  and  no  change, 
except  in  degree,  in  the  exercise  of  the  easement,  and  that  for  this 
reason  the  defendant  has  not  exceeded  his  rights  in  the  use  of  the 
passageway.  Bill  dismissed. 

Note.  —  In  Cowling  v.  Higginson,  4  M.  &  W.  245,  the  question 
was  as  to  the  extent  of  an  easement  gained  by  adverse  use.  Paeke, 
B.,  said  that  if  it  was  shown  that  the  defendant  had  used  the  way 
whenever  he  required  it,  it  was  evidence  from  which  a  jury  might 
infer  a  general  right.   "You  must  generalize  to  some  extent." 


HOWELL  V.  KING. 

1  Mod.  190.     1674. 

Trespass,  for  driving  cattle  over  the  plaintiff's  ground.  The  case 
was,  A  has  a  way  over  B's  gi-ound  to  Black-Acre,  and  drives  his 
beasts  over  B's  gi'ound  to  Black-Acre,  and  then  to  another  place 
lying  beyond  Black-Acre.  And,  Whether  this  was  lawful  or  no?  was 
the  question,  upon  a  demurrer. 

It  was  urged.  That  when  his  beasts  were  at  Black- Acre,  he  might 
drive  them  whither  he  would. 

On  the  other  side  it  was  said.  That  by  this  means  the  defendant 
might  purchase  a  hundred  or  a  thousand  acres  adjoining  to  Black- 
Acre,  to  which  he  prescribes  to  have  a  way;  by  which  means  th  ) 
plaintiff  would  lose  the  benefit  of  his  land:  and  that  a  prescripfon 
presupposed  a  grant,  and  ought  to  be  continued  according  to  the 
intent  of  its  original  creation. 

The  whole  Court  agreed  to  this.  —  And  judgment  was  given  for 
the  plaintiff. 


WILLIAMS  V.   JAMES. 

L.  R.  2  C.  P.  577.     1867. 

Declaration  for  trespass  to  land. 

Fifth  plea,  that  one  Ann  Morgan  was  owner  in  fee  of  certain  land, 
and  was  entitled  by  immemorial  user  to  a  right  of  way  over  the  plain- 
tiff's land,  on  foot,  and  with  wagons,  carts,  and  horses,  to  a  publi'" 


780  WILLIAMS   V.    JAMES.  [cHAP.  IL 

highway  from  her  said  land,  for  the  more  convenient  occupation 
thereof;  that  Ann  Morgan  demised  this  land  with  its  appurtenances 
to  one  Jenkins;  and  that  the  alleged  trespasses  were  the  use  of  the 
right  of  way  by  the  defendant,  as  the  servant  of  Jenkins. 

Issue  and  new  assignment  of  excess  in  the  user  of  the  way. 

At  the  trial  before  Pigott,  B.,  at  the  spring  assizes  for  Monmouth- 
shire, the  following  facts  were  proved :  Ann  Morgan  was  owner  in  fee 
of  a  field  called  the  Nine  Acre  Field,  and  of  two  other  fields  adjoining, 
called  Parrott's  land.  These  three  fields  were  in  the  occupation  of  R. 
Jenkins.  There  was  from  time  immemorial  a  right  of  way  on  foot, 
and  for  wagons,  carts,  and  horses,  from  the  Nine  Acre  Field  over  the 
plaintiff's  land  to  a  public  highway.  There  was  no  right  of  way  over 
the  plaintiff's  land  from  Parrott's  land.  In  the  summer  of  1866, 
Jenkins  mowed  the  Nine  Acre  Field  and  Parrott's  land,  and  stacked 
all  the  hay  upon  the  Nine  Acre  Field.  In  September,  1866,  Jenkins 
sold  the  hay  to  the  defendant,  who  carted  it  over  the  plaintiff's  land 
to  the  highway,  which  was  the  alleged  trespass. 

The  jury  found,  first,  that  there  was  an  immemorial  right  of  way 
from  the  Nine  Acre  Field  to  the  highway;  secondly,  that  the  stacking 
of  the  hay  was  done  honestly,  and  not  to  get  the  way  further  on; 
thirdly,  that  there  was  no  excess  in  the  user  of  the  way  by  the 
defendant,  apart  from  the  question  of  defendant's  right  to  cart  the 
hay  grown  on  Parrott's  land  over  the  plaintiff's  land;  plaintiff's 
Parrott's  land  hay  could  not  be  legally  carried  over  the  fifthly,  if 
land,  then  damages  40s. 

Pigott,  B.,  directed  a  verdict  for  40s.  to  be  entered  for  the 
plaintiff,  with  leave  to  the  defendant  to  move  to  enter  the  verdict 
for  him. 

BoviLL,  C.J.  In  all  cases  of  this  kind  which  depend  upon  user, 
the  right  acquired  must  be  measured  by  the  extent  of  the  enjojinent 
which  is  proved.  When  a  right  of  way  to  a  piece  of  land  is  proved, 
then  that  is,  unless  something  appears  to  the  contrary,  a  right  of  way 
for  all  purposes  according  to  the  ordinary  and  reasonable  use  to  which 
that  land  might  be  applied  at  the  time  of  the  supposed  grant.  Such 
a  right  cannot  be  increased  so  as  to  affect  the  servient  tenement  by 
imposing  upon  it  any  additional  burthen.  It  is  also  clear,  according 
to  the  authorities,  that  where  a  person  has  a  right  of  waj^  over  one 
piece  of  land  to  another  piece  of  land,  he  can  only  use  such  right  in 
order  to  reach  the  latter  place.  He  carmot  use  it  for  the  purpose  of 
going  elsewhere.  In  most  cases  of  this  sort  the  question  has  been 
whether  there  was  a  bona  fide  or  a  mere  colourable  use  of  the  right  of 
way.  That  was  the  question  in  Skull  v.  Glenister,  and  on  which  the 
case  was  ultimately  decided.  This  question  is  excluded  here  by  the 
finding  of  the  jury. 

With  respect  to  the  purposes  for  which  the  land  was  used,  it  is 
agreed  on  both  sides  that  that  question  was  raised  and  discussed  at 


CHAP.  II.]  McCULLOUGH    V.    BROAD    EXCHANGE    CO.  781 

the  trial,  and  the  question  whether  there  had  been  any  excess  in  the 
user  of  the  right  of  way,  and  also  the  question  of  the  bona  fides  of 
Jenkins  in  stacking  the  hay,  were  left  to  the  jury.  The  question 
therefore,  of  what  was  the  ordinary  and  reasonable  use  of  the  land, 
was  practically  left  to  the  jury.  They  found  that  Jenkins  acted  hon- 
estly, and  that  is  equivalent  to  finding  that  what  had  been  done  wa& 
done  in  the  ordinaiy  and  reasonable  use  of  the  land  to  which  the 
right  of  way  was  claimed,  and  in  the  ordinary  and  reasonable  use  of 
the  right  of  way  itself.  It  was  for  the  plaintiff  to  show  that  there 
ViS-d  been  some  excess  of  user  on  the  part  of  the  defendant,  as  by 
showdng  that  the  user  of  the  right  of  way  was  only  colourable,  or  that 
the  Nine  Acre  Field  was  used  for  pui-poses  other  than  those  included 
in  the  ordinary  and  reasonable  use  of  the  land.  The  finding  of  the 
jury  excludes  both  these  questions.  In  considering  the  matters  sub- 
mitted to  them  the  jurj^  must  have  had  to  consider  whether  any 
additional  burthen  had  been  cast  upon  the  servient  tenement.  This 
was  a  necessary  element  for  them  to  take  into  consideration  in  decid- 
ing whether  there  had  been  only  an  ordinary'  and  reasonable  use  of 
the  land  in  question.  If  no  additional  burthen  was  cast  upon  the 
servient  tenement  the  jury  might  well  find  that  there  had  been  only 
the  ordinary  and  reasonable  use  of  the  right  of  way.  On  the  whole, 
the  right  of  way  being  established,  and  the  plaintiff  not  showing  any 
excess  in  the  user,  I  think  the  defendant  is  entitled  to  the  verdict, 
and  this  rule  must  therefore  be  made  absolute. 


McCULLOUGH  v.  BROAD   EXCHANGE  CO. 

101  N.Y.  App.  Div.  566.     1905. 

Laughlin,  J.  The  action  is  brought  to  obtain  a  decree  forfeiting 
and  extinguishing  the  easement  of  the  defendant.  The  Broad  Ex- 
change Company,  for  ingress  and  egress  through  an  alleyway  from 
its  premises,  formerly  known  as  No.  52  Exchange  Place,  over  an  open 
area  and  plaintiffs'  premises  to  Beaver  Street.  The  easement  was 
granted  in  a  partition  deed  bearing  date  the  20th  day  of  June,  1879, 
which  embraced  premises  Nos.  38,  40,  42  and  52  Exchange  Place, 
Nos.  25,  27  and  29  William  Street,  and  51  and  53  Beaver  Street,  and 
the  buildings  and  premises  in  the  rear.  The  defendant.  The  Broad 
Exchange  Company,  has  succeeded  to  the  title  to  the  premises  No.  52 
Exchange  Place  and  the  building  in  the  rear  thereof,  and  the  plain- 
tiffs own  the  premises  Nos.  51  and  53  Beaver  Street.  The  easement 
related  to  an  irregular  open  area  in  the  interior  of  the  block  inclosed 
by  the  premises  partitioned,  all  of  which  abutted  thereon,  and  to  a 
covered  alleyway  ten  feet  in  width  over  the  premises  51  Beaver 
Street  connecting  the  open  area  with  Beaver  Street.  It  was  expressly 


782  McCULLOUGH   V.   BROAD    EXCHANGE    CO.  [CHAP.  II. 

covenanted  "that  for  the  mutual  advantage  of  all  the  property" 
partitioned  and  conveyed  the  open  area  "shall  be  forever  left  as  an 
open  space,  and  shall  be  unencumbered  by  any  erection  (except  such 
walks  as  now  cross  the  same),  for  the  purpose  of  giving  light  and  air 
and  ingress  to  and  egress  from  all  the  premises  herein  described;  said 
open  spaces  as  they  now  exist  shall  be  maintained  in  good  order  and 
kept  in  cleanly  condition  at  the  joint  and  equal  expense  of  all  parties 
hereto,"  and  that  the  covenant  should  be  held  to  be  a  covenant  run- 
ning with  the  land.  The  covenant  with  respect  to  the  alley  is  that  it 
"shall  forever  be  left  open  to  the  present  height  of  the  same,  as  a 
means  of  ingress  and  egress  for  the  advantage  of  all  the  property 
hereinbefore  conveyed  and  partitioned."  It  appears  that  at  the  time 
the  partition  deed  was  executed  there  were  two  low  brick  buildings 
on  the  premises  known  as  No.  52  Exchange  Place,  the  one  fronting 
on  the  street  covering  the  lot  to  the  depth  of  107  feet  and  the  one  in 
the  rear  being  34  feet  in  width,  covering  the  lot  within  a  few  inches, 
and  116  feet  in  length.  Both  of  these  were  office  buildings.  Prior  to 
the  commencement  of  the  action  the  defendant.  The  Broad  Exchange 
Company,  became  the  owner  of  four  lots  known  as  Nos.  44,  46,  48 
and  50  Exchange  Place  l>ang  immediately  to  the  east  of  its  premises 
No.  52  Exchange  Place,  having  an  aggregate  frontage  of  about  89 
feet  and  6  inches  and  extending  in  depth  102  feet  and  4  inches,  and 
of  several  irregular  lots  adjoining  No.  52  Exchange  Place  on  the  west 
known  as  Nos.  54  and  56  Exchange  Place  and  Nos.  25,  27,  29,  31  and 
33  Broad  Street,  having  an  aggregate  frontage  on  Exchange  Place  of 
about  124  feet  and  9  inches  and  of  106  feet  and  8  inches  on  Broad 
Street.  None  of  these  lots  except  said  No.  52  Exchange  Place  was 
embraced  in  the  partition  deed  or  had  appurtenant  to  it  any  right  or 
interest  in  the  covenants  or  easements  mentioned  in  the  partition 
deed.  These  several  lots  together  formed  practically  a  parallelogram 
236  feet  long  on  Exchange  Place  and  106  feet  wide  on  Broad  Street 
with  the  addition  of  the  lot  about  34  feet  wide  by  116  feet  deep  in 
the  rear  of  the  center  of  the  parallelogram,  it  being  the  lot  in  the  rear 
of  No.  52  Exchange  Place  and  entitled  to  the  enjoyment  of  the  ease- 
ment in  comiection  therewith  and  for  brevity  in  the  opinion  it  will  be 
deemed  part  of  and  referred  to  as  No.  52  Exchange  Place.  The 
Broad  Exchange  Company  is  a  New  Jersey  corporation,  and  after 
acquiring  title  to  these  lots  and  about  the  1st  day  of  May,  1900,  it 
caused  plans  to  be  prepared  for  the  erection  of  a  single  office  building 
thereon,  twenty  stories  in  height  with  front  entrances  on  Broad 
Street  and  Exchange  Place  and  a  door  in  the  rear  opening  upon  that 
part  of  the  premises  which  was  dominant  to  the  easement  upon  the 
rear  courtyard  or  open  space  referred  to  in  the  said  partition  deed. 
This  building  was  designed  for  the  accommodation  of  about  seven 
thousand  occupants,  and  was  to  have  eighteen  passenger  elevators 
and  a  common  heating  and  power  plant  for  all.   The  building  was 


CHAP.  II.]  McCULLOUGH    V.    BROAD    EXCHANGE   CO.  783 

constructed  in  accordance  with  the  plans  by  the  defendant  George  A. 
Fuller  Company  for  the  Broad  Exchange  Company,  and  prior  to  the 
trial  of  the  action  it  was  completed  and  opened  for  the  reception  and 
occupation  of  tenants.  The  boiler  and  machinery  for  heating  the 
building  and  operating  the  elevators  are  in  that  part  of  the  premises 
appurtenant  to  the  easement,  but  the  heat  and  power  are  distributed 
into  those  parts  of  the  building  beyond  the  lines  of  the  original  lot 
No.  52  Exchange  Place,  which  alone  was  dominant  to  the  easement. 
It  is  found  by  the  court  that  the  building  was  erected  without  regard 
to  the  Knes  of  lot  No.  52  Exchange  Place,  and  that  it  was  designed  as 
one  concrete  structure  with  connecting  halls  and  stairways  through- 
out, and  with  interdependent  relations  between  its  various  parts. 
The  office  space  in  that  part  of  the  building  standing  upon  the  lot 
formerly  known  as  No.  52  Exchange  Place  constitutes  only  one  fifth 
of  the  entire  office  space  of  the  building.  The  average  consumption 
of  coal  for  the  generation  of  heat  and  power  in  the  building  is  between 
twenty  and  twenty-three  tons  per  day.  When  the  building  was 
planned  it  was  intended  that  the  coal  should  be  brought  in  through 
this  alley  and  across  the  open  area  and  transmitted  to  the  furnace 
room  through  coal  chutes,  and  this  course  has  been  taken.  The  ashes 
from  the  furnace  were  designed  to  be  and  are  removed  over  the  area- 
way  and  through  the  alley.  Each  of  the  eighteen  passenger  elevators 
affords  access  to  any  part  of  the  building,  and  eight  of  them  are 
entirely  upon  the  original  dominant  lot  and  seven  others  are  partly 
over  it.  The  waste  paper,  sweepings  and  refuse  from  the  entire  office 
building  are  deposited  in  bins  near  the  door  opening  into  the  open 
area  referred  to  and  removed  via  the  alley.  Employees  and  tenants 
of  all  parts  of  the  building  may  use  the  doorway  opening  upon  the 
area  at  will  for  passing  out  to  Beaver  Street  or  to  the  building  from 
Beaver  Street,  and  some  of  them  avail  themselves  of  the  opportunity 
thus  afforded  for  using  the  area  and  alley.  The  trial  court  has  found 
that  by  thus  constructing  and  using  the  office  building  the  appellant 
owner  has  "so  materially  changed  the  condition  of  the  originally 
dominant  tenement  as  to  increase  the  burden  of  the  servitude  upon 
the  servient  tenement  of  the  plaintiffs,  and  to  subject  the  servient 
tenement  to  the  service  of  premises  other  than  the  premises  originally 
dominant."  .  .  . 

Where  the  nature  and  extent  of  the  use  of  the  easement  is,  as  here, 
unrestricted,  the  use  by  the  dominant  tenement  might,  of  course, 
be  enlarged  or  changed  {Allan  v.  Gomme,  11  Ad.  &  El.  759;  Arnold  v. 
Fee,  148  N.Y.  214;  Gillespie  v.  Weinberg,  Id.  23S;Dand  v.  Kingscote, 
6  M.  &  W.  173;  .S/oan  v.  Holliday,  30  L.  T.  Rep.  [N.S.]  757) ;  but  the 
owner  of  the  dominant  tenement  may  not  subject  the  servient  tene- 
ment to  servitude  or  use  in  connection  with  other  premises  to  which 
the  easement  is  not  appurtenant.  Williams  v.  James,  L.  R.  2  C.  P. 
577.  It  is  manifest,  therefore,  that  although  the  appellant  as  owner 


784  BAKEMAN   V.    TALBOT.  [CHAP.  II. 

of  the  dominant  tenement  might  have  lawfully  devoted  it  to  a  use 
that  would  have  authorized  and  required  a  greater  burden  on  this 
easement  and  right  of  way  than  has  now  been  imposed,  yet  the  ten- 
ants of  those  parts  of  the  building  not  erected  upon  the  premises  No. 
52  Exchange  Place  have  no  right  to  use  the  easement  and  the  owner 
has  no  right  to  enlarge  the  use  of  the  easement  for  the  benefit  of  those 
parts  of  his  office  building  which  are  upon  premises  other  than  the 
dominant  tenement.  This  appUes  to  the  removal  of  ashes,  sweepings 
and  refuse  as  well  as  to  bringing  coal.  It  is  not  needful  to  inquire 
whether  the  owner  of  the  dominant  premises  might  estabhsh  thereon 
a  plant  for  developing  heat,  light  or  power  and  transmitting  the  same 
to  other  premises  for  hire  and  thus  subject  the  right  of  way  to  a  more 
extensive  use  than  that  to  which  it  is  now  put.  That  might  be  a 
question  of  law  and  it  might  be  a  question  of  fact  depending  on  the 
reasonableness  of  the  use.  Williams  v.  James,  supra.  The  case  is  not 
analogous  to  the  present  situation.  The  coal  and  the  heat  and  power 
generated  thereby  are  used  directly  for  the  benefit  of  the  dominant 
tenement  and  adjacent  premises  of  the  appellant  owner.  It  is  no 
different  in  principle  than  if  there  were  separate  power  plants  and 
the  coal  was  passed  over  the  dominant  tenements  for  use  on  the 
other  premises  which  the  appellant  clearly  would  have  no  right  to  do. 
Skull  V.  Glenister,  16  C.  B.  [N.S.]  81 ;  Davenport  v.  Lamson,  38  Mass. 
[21  Pick.]  72;  Webster  v.  Bach,  Freem.  247;  Lawton  v.  Ward,  Ld. 
Raym.  75. 

Note.  —  This  decision  was  affirmed  by  the  Court  of  Appeals. 
184  N.Y.  592. 


BAKEMAN  v.  TALBOT. 

31  N.Y.  366.     1865. 

The  action  is  in  the  nature  of  a  bill  in  equity  to  establish  a  right  of 
way  claimed  by  the  plaintiff  over  the  land  of  the  defendant,  and  to 
enjoin  the  latter  from  continuing  certain  fences  which  he  had  erected, 
and  to  compel  him  to  remove  them.  A  farm,  of  which  the  premises 
owned  by  the  plaintiff  and  those  owned  by  the  defendant  are  par- 
cels, embracing  a  certain  lot  No.  179,  was  formerly  owned  by  one  De 
Groot,  who  died  intestate  in  1838,  lea\'ing  children,  to  whom  the 
land  descended.  Partition  was  made  between  them  by  suit  in  chan- 
cery in  the  year  1839.  The  commissioners  appointed  by  the  court  to 
make  partition  divided  the  farm  into  several  smaller  lots,  and  al- 
lotted the  one  numbered  12  to  the  party  under  whom  the  plaintiff 
derived  title  by  a  subsequent  conveyance.  Lots  numbers  9,  10,  and 
11  were  set  off  to  parties  under  whom  the  defendant  subsequently 


CHAP.  II.]  BAKEMAN    V.   TALBOT.  785 

acquired  title.  The  four  lots  were  wood  lots,  and  lay  adjoining  each 
other,  and  are  bounded  on  the  north  by  the  northerly  hne  of  the 
original  farm,  the  plaintiff's  being  the  easternmost  of  the  four  lots. 
There  is  a  pubhc  highway  running  westerly  of  the  lots.  The  report 
of  the  commissioners  (which  was  confirmed  by  the  court)  contains 
the  following  provision:  "The  right  of  way  or  passage  is  reserved  to 
the  said  heirs  respectively,  and  to  their  heirs  and  assigns,  from  the 
highway,  near  the  west  Une  of  said  lot  number  179,  and  immediately 
adjoining  the  north  line  of  the  farm  aforesaid,  and  extending  east 
along  the  north  hne  of  said  farm  to  the  extreme  east  comer  of  the 
wood  lots  aforesaid,  to  enable  them  to  pass  to  and  from  their  respec- 
tive wood  lots  for  the  purpose  of  obtaining  wood  and  timber  there- 
from, or  for  any  other  purpose."  The  plaintiff's  lot  remained  unim- 
proved, but  the  defendant's  had  been  cleared  and  were  under  culti- 
vation. The  defendant,  before  the  commencement  of  the  suit,  had 
built  a  fence  between  his  easternmost  lot  and  the  plaintiff's  lot,  and 
also  fences  between  each  of  his  other  lots,  each  fence  running  quite 
to  his  northerly  Hne.  Two  of  the  fences  were  built  with  stakes,  "with 
rails  to  slip  between  them  like  bars."  The  other  was  of  rails,  and  had 
what  is  called  in  the  case  a  "slip  gate"  at  the  northerly  end,  which 
was  the  place  he  passed,  so  that  the  rails  could  be  taken  out  and 
turned  round,  and  so  that  the  plaintiff  could  pass  through.  After  the 
commencement  of  the  suit,  the  defendant  put  up  bars  on  the  lines 
of  three  of  the  lots.  The  plaintiff's  premises  being  a  wood  lot,  he  had 
no  occasion  to  use  the  reserved  passageway  except  at  long  intervals. 

The  plaintiff  claimed  that  the  defendant  ought  to  have  placed 
gates  at  the  place  of  passage,  but  this  the  defendant  refused  to  do, 
upon  which  the  plaintiff  threatened  to  leave  the  fences  down,  and 
the  defendant  threatened  him  with  personal  violence  if  he  should 
do  so. 

The  judge  (Hon.  Daniel  Pratt,  before  whom  the  case  was  tried 
without  a  jury),  after  stating  the  foregoing  particulars  as  conclusions 
of  fact,  determined,  that  although  the  plaintiff  was  entitled  to  a 
right  of  passage  over  the  defendant's  land  at  the  place  indicated,  yet 
that  the  maintaining  the  fences  there  was  not  an  obstruction  which 
the  plaintiff  was  entitled  to  have  removed.  Judgment  was  accord- 
ingly given  in  favor  of  the  defendant,  with  costs,  upon  which  the 
plaintiff  prosecuted  this  appeal. 

The  case  was  submitted  on  printed  points. 

Denio,  Ch.J.  No  question  is  made  but  that  the  plaintiff  is  en- 
titled to  a  right  of  way  or  passage  across  the  north  end  of  the  defend- 
ant's land.  The  extent  of  that  right,  and  the  duty  of  the  respective 
owners  towards  each  other,  is  to  be  determined  by  the  language  of 
the  reservation  and  the  circumstances  of  the  case.  The  plaintiff 
insists,  in  substance,  that  the  defendant  was  bound  to  keep  open  a 
narrow  road  or  lane  across  the  north  end  of  his  land,  or  if  he  w  ill  not 


786  BAKEMAN    V.    TALBOT.  [CHAP.  II. 

do  this,  that  he  should,  at  least,  insert  swinging  gates  in  his  fences 
which  might  be  opened  and  shut  with  ease  whenever  the  plaintiff  had 
occasion  to  pass.  What  the  defendant  did,  as  I  understand  the  testi- 
mony and  the  judge's  conclusions,  was  to  subdivide  his  land  in  the 
manner  which  he  found  convenient  for  its  occupation,  running  the 
fences  quite  to  his  northerly  line,  making  arrangements,  however,  at 
the  place  indicated  for  passage,  by  which  the  bars  or  rails  could  be 
readily  removed  and  conveniently  replaced  when  the  plaintiff  should 
have /occasion  to  go  through.  This  would  no  doubt  be  somewhat  less 
beneficial  to  the  plaintiff  than  either  a  clear  space  like  a  common 
road,  or  a  series  of  gates  which  could  be  opened  and  shut  like  doors. 
But  it  would  be  much  less  onerous  to  the  defendant,  who,  upon  the 
plaintiff's  position,  would  have  to  forego  the  use  of  a  considerable 
strip  of  land,  and,  in  addition,  to  build  a  lateral  fence  across  the 
whole  north  end  of  the  premises,  or  to  incur  considerable  expense  in 
erecting  gates.  I  am  of  opinion  that  the  defendant's  position  presents 
the  more  reasonable  view  of  the  case.  The  main  object  of  the  reser- 
vation in  the  commissioner's  report  was  to  enable  those  of  the  pro- 
prietors who  should  become  the  owners  of  the  lots  most  remote  from 
the  highway  to  go  upon  and  pass  over  the  land  of  the  others  situated 
between  them  and  the  highway,  without  committing  a  trespass,  and 
to  define  the  direction  of  such  passage.  We  are  not  to  intend  that  it 
was  designed  to  make  the  burthen  unnecessarily  onerous.  The  cir- 
cumstance that  the  land  was  wholly  in  forest,  and  that  the  primary 
purpose  indicated  was  the  carrying  of  w^ood  and  timber,  do  not  sug- 
gest the  necessity  of  a  thoroughfare  like  a  highway,  or  an  unimpeded 
private  way.  If  the  passage  was  made  as  convenient  as  the  mode  of 
access  which  a  fanner  usually  provides  for  himself,  to  get  to  and  from 
his  wood  land,  it  seems  to  me  that  the  purposes  of  the  resei-vation 
would  be  confirmed.  De  Groot  formerly  possessed  the  whole  farm. 
It  was  about  to  be  subdivided  and  assigned  in  severalty  to  different 
owners.  It  would  be  improper  that  those  to  whom  back  lots  were 
assigned  should  be  precluded  from  getting  to  the  highway  except  by 
committing  a  trespass,  or  by  claiming  a  way  by  necessity,  a  right  but 
little  known  and  not  of  convenient  application.  Moreover  the  exi- 
gencies of  the  case  did  not  contemplate  a  constant  use  of  the  passage, 
but  only  such  an  occasional  use  as  the  resort  to  wood  land  would 
require,  and  such  as  the  plaintiff  has  since  exercised.  There  is  no  rea- 
son to  believe  that  if  the  plaintiff,  besides  owning  the  back  wood  lot, 
had  also  been  the  proprietor  of  the  intervening  cleared  land,  he  would 
have  found  it  necessarj^  or  thought  it  expedient  to  have  fenced  out  a 
lane,  or  have  erected  these  gates  for  his  use  in  passing  to  and  from  his 
timber  land,  and  if  he  would  not  have  done  so  it  is  unreasonable  to 
require  it  of  the  defendant.  The  defendant  certainly  has  no  right  to 
preclude  the  plaintiff  from  availing  himself  of  the  right  of  passage, 
or  to  render  the  exercise  of  that  right  unusually  or  unreasonably  diffi- 


CHAP.  II.]  BAKEMAN    V.    TALBOT.  787 

cult  or  burthensome.  I  think  he  is  not  shown  to  have  done  so.  It 
must  be  kept  in  mind  that  the  plaintiff's  lot  is  still  wood  land.  It 
may  remain  so  for  many  years;  but  it  may  be  cleared  up  and  culti- 
vated, and  have  buildings  erected  on  it  and  be  apphed  to  such  uses  as 
to  require  constant  and  frequent  passage  between  it  and  the  high- 
way. There  is  nothing  inconsistent  in  holding  that  the  present  ar- 
rangements are  suitable  and  sufficient  under  existing  circumstances; 
and  after  these  circumstances  have  changed,  and  the  question  shall 
arise  as  to  what  shall  then  be  proper,  to  determine  that  a  passage 
perpetually  open  or  a  sj'stem  of  gates  better  adapted  to  such  in- 
creased use  than  the  present  fences  and  bars,  shall  be  required  of  the 
defendant.  It  would  not  be  right  at  this  time  to  oblige  the  defendant 
to  furnish  facilities  for  a  state  of  affairs  which  may  never  arise,  or 
which  may  not  arise  until  some  remote  period.  The  doctrine  that  the 
facilities  for  passage,  where  a  private  right  of  way  exists,  are  to  be 
regulated  bj^  the  nature  of  the  case  and  the  circumstances  of  the  time 
and  place,  is  very  well  settled  by  authority.  Hemphill  v.  The  City  of 
Boston,  8  Cush.  195;  Cowling  v.  Higginson,  4  Mees.  &  Wels.  245. 
The  last  case  determines,  in  effect,  that  the  extent  of  the  privilege 
created  by  the  dedication  of  a  private  right  of  passage  depends  upon 
the  circumstances,  and  raises  a  question  for  the  determination  of  a 
jury.  If,  therefore,  in  the  present  case  I  felt  less  confidence  in  the 
conclusion  I  have  stated  than  I  do,  I  should  hold  the  question  had 
been  settled  by  the  judge  sitting  in  the  place  of  a  jury  in  a  manner 
that  we  could  not  disturb. 
The  judgment  should  be  affirmed. 

Note.  —  See,  accord,  Hoyt  v.  Hart,  149  Cal.  722;  Tacoma  Safety 
Deposit  Co.  V.  Chicago,  247  111.  192  (owner  of  the  fee  of  land  subject 
to  a  public  easement  for  street  purposes  may  excavate  beneath  the 
sidewalks  and  use  the  space  so  made);  Atkins  v.  Bordman,  2  Met, 
(Mass.)  457;  Thompson  v.  Germania  Life  Insurance  Co.,  97  Minn.  89; 
Duross  V.  Singer,  224  Pa.  573.  Cf.  Attorney-General  v.  Williams,  140 
Mass.  329. 


788  WOOD    V.    LEADBITTER.  [CHAP.  HI. 


CHAPTER  III. 
LICENSES. 


THOMAS  V.  SORRELL. 

Vaughan,  330,  351. 

A  DISPENSATION  or  Hceiise  properly  passeth  no  interest,  nor  alters 
or  transfers  property  in  any  thing,  but  only  makes  an  action  lawful, 
which  without  it  had  been  unlawful.  As  a  license  to  go  beyond  seas, 
to  hunt  in  a  man's  park,  to  come  in  to  his  house,  are  only  actions, 
which  without  license,  had  been  unlawful. 

But  a  license  to  hunt  in  a  man's  park,  and  carry  away  the  deer 
killed  to  his  own  use,  to  cut  down  a  tree  in  a  man's  gTound  and  to 
carry  it  away  the  next  day  after  to  his  own  use,  are  licenses  as  to  the 
acts  of  hunting  and  cutting  down  the  tree,  but  as  to  the  carrying 
away  of  the  deer  killed,  and  tree  cut  down,  they  are  grants. 


WOOD  V.  LEADBITTER. 

13  M.  &  W.  838.     1845. 

Alderson,  B.  This  was  an  action  tried  before  my  Brother  Rolfe 
at  the  sittings  after  last  Trinity  Tei-m.  It  was  an  action  for  an  assault 
and  false  imprisonment.  The  plea  (on  which  alone  any  question  arose) 
was,  that  at  the  time  of  the  alleged  trespass  the  plaintiff  was  in  a 
certain  close  of  Lord  Eglintoun,  and  the  defendant,  as  the  servant  of 
Lord  Eglintoun,  and  by  his  command,  laid  his  hands  upon  the  plain- 
tiff in  order  to  remove  him  from  the  said  close,  using  no  unnecessary 
violence.  Replication,  that,  at  the  time  of  such  removal,  the  plaintiff 
was  in  the  said  close  by  the  leave  and  license  of  Lord  Eglintoun.  The 
leave  and  license  was  traversed  by  the  defendant,  and  issue  was 
joined  on  that  traverse.  On  the  trial  it  appeared  that  the  place  from 
which  the  plaintiff  was  removed  by  the  defendant  was  the  inclosure 
attached  to  and  surrounding  the  great  stand  on  the  Doncaster  race- 
course; that  Lord  Eglintoun  was  steward  of  the  races  there  in  the  year 
1843;  that  tickets  were  sold  in  the  town  of  Doncaster  at  one  guinea 
each,  which  were  understood  to  entitle  the  holders  to  come  into  the 
stand,  and  the  inclosure  surrounding  it,  and  to  remain  there  every 


CHAP.  III.]  WOOD    V.    LEADBITTER.  789 

day  during  the  races.  These  tickets  were  not  signed  by  Lord  EgUn- 
toun,  but  it  must  be  assumed  that  they  were  issued  with  his  privity. 
It  further  appeared,  that  the  plaintiff,  having  purchased  one  of  these 
tickets,  came  to  the  stand  during  the  races  of  the  yeai- 1843,  and  was 
there  or  in  the  inclosm-e  while  the  races  were  going  on,  and  while 
there,  and  during  the  races,  the  defendant,  by  the  order  of  Lord 
Eglintoun,  desired  him  to  depart,  and  gave  him  notice  that  if  he  did 
not  go  away,  force  would  be  used  to  turn  him  out.  It  must  be  as- 
sumed that  the  plaintiff  had  in  no  respect  misconducted  himself,  and 
that,  if  he  had  not  been  required  to  depart,  his  coming  upon  and 
remaining  in  the  inclosure  would  have  been  an  act  justified  by  his 
purchase  of  the  ticket.  The  plaintiff  refused  to  go,  and  thereupon 
the  defendant,  by  order  of  Lord  Eglintoun,  forced  him  out,  without 
returning  the  guinea,  using  no  unnecessary  violence. 

My  Brother  Rolfe,  in  directing  the  jury,  told  them,  that,  even 
assuming  the  ticket  to  have  been  sold  to  the  plaintiff  under  the  sanc- 
tion of  Lord  Eglintoun,  still  it  was  lawful  for  Lord  Eglintoun,  without 
returning  the  guinea,  and  without  assigning  any  reason  for  what  he 
did,  to  order  the  plaintiff  to  quit  the  inclosure,  and  that,  if  the  jury 
were  satisfied  that  notice  was  given  by  Lord  Eglintoun  to  the  plain- 
tiff, requiring  him  to  quit  the  ground,  and  that,  before  he  was  forcibly 
removed  by  the  defendant,  a  reasonable  time  had  elapsed,  during 
which  he  might  conveniently  have  gone  away,  then  the  plaintiff 
was  not,  at  the  time  of  the  removal,  on  the  place  in  question  by  the 
leave  and  license  of  Lord  Eglintoun.  On  this  direction  the  jury  found 
a  verdict  for  the  defendant.  In  last  Michaelmas  Term,  Mr.  Jervis 
obtained  a  rule  nisi  to  set  aside  the  verdict  for  misdirection,  on  the 
ground,  that,  under  the  circumstances.  Lord  Eglintoun  must  be 
taken  to  have  given  the  plaintiff  leave  to  come  into  and  remain  in  the 
inclosure  during  the  races;  that  such  leave  was  not  revocable,  at  all 
events  without  returning  the  guinea ;  and  so  that,  at  the  time  of  the 
removal,  the  plaintiff  was  in  the  inclosure  by  the  leave  and  license  of 
Lord  Eghntoun.  Cause  was  shewn  during  last  term,  and  the  question 
was  argued  before  my  Brothers  Parke  and  Rolfe  and  myself;  and 
on  account  of  the  conflicting  authorities  cited  in  the  argument,  we 
took  time  to  consider  our  judgment,  which  we  are  now  prepared  to 
deliver. 

That  no  incorporeal  inheritance  affecting  land  can  either  be  cre- 
ated or  transferred  otherwise  than  by  deed,  is  a  proposition  so  well 
established,  that  it  would  be  mere  pedantry  to  cite  authorities  in  its 
support.  All  such  inheritances  are  said  emphatically  to  lie  in  grant, 
and  not  in  livery,  and  to  pass  by  mere  delivering  of  the  deed.  In  all 
the  authorities  and  text-books  on  the  subject,  a  deed  is  always  stated 
or  assumed  to  be  indispensably  requisite. 

And  although  the  older  authorities  speak  of  incorporeal  inherit- 
ances, yet  there  is  no  doubt  but  that  the  principle  does  not  depend  on 


790  WOOD    V.    LEADBITTER.  [CHAP,  III. 

the  qualit}^  of  interest  granted  or  transferred,  but  on  the  nature  of 
the  subject-matter:  a  right  of  common,  for  instance,  which  is  a  profit 
k  prendre,  or  a  right  of  way,  which  is  an  easement,  or  right  in  nature 
of  an  easement,  can  no  more  be  granted  or  conveyed  for  Kfe  or  foi 
years  without  a  deed,  than  in  fee  simple.  Now,  in  the  present  case, 
the  right  claimed  by  the  plaintiff  is  a  right,  during  a  portion  of  each 
day,  for  a  limited  number  of  days,  to  pass  into  and  through  and  to 
remain  in  a  certain  close  belonging  to  Lord  Eglintoun;  to  go  and 
remain  where  if  he  went  and  remained,  he  would,  but  for  the  ticket, 
be  a  trespasser.  This  is  a  right  affecting  land  at  least  as  obviously 
and  extensively  as  a  right  of  way  over  the  land,  —  it  is  a  right  of 
way  and  something  more :  and  if  we  had  to  decide  this  case  on  general 
principles  only,  and  independently  of  authority,  it  would  appear  to 
us  perfectly  clear  that  no  such  right  can  be  created  otherwise  than 
by  deed.  The  plaintiff,  however,  in  this  case  argues,  that  he  is  not 
driven  to  claim  the  right  in  question  strictly  as  grantee.  He  contends, 
that,  without  any  gi-ant  from  Lord  Eglintoun,  he  had  license  from 
him  to  be  in  the  close  in  question  at  the  time  when  he  was  turned  out, 
and  that  such  license  was,  under  the  circumstances,  irrevocable. 
And  for  this  he  relies  mainly  on  four  cases,  which  he  considers  to  be 
expressly  in  point  for  him,  viz.,  Wehh  v.  Paternoster,  reported  in  five 
different  books,  namely.  Palmer,  71;  Roll.  143  and  152;  Noy,  98; 
Popham,  151,  and  Godbolt,  182;  Wood  v.  Lake,  Sayer,  3,  Tayler  v. 
Waters,  7  Taunt.  374,  and  Wood  v.  Manley,  11  Ad.*^&  E.  34;  3  Per. 
&D.  5. 

As  the  argument  of  the  plaintiff  rested  almost  entirely  on  the 
authority  of  these  four  cases,  it  is  very  important  to  look  to  them 
minutely,  in  order  to  see  the  exact  points  which  they  severally 
decided. 

Before,  however,  we  proceed  to  this  investigation,  it  may  be  con- 
venient to  consider  the  nature  of  a  license,  and  what  are  its  legal 
incidents.  And,  for  this  puipose,  we  cannot  do  better  than  refer  to 
Lord  C.J.  Vaughan's  elaborate  judgment  in  the  case  of  Thomas  v. 
Sorrell,  as  it  appears  in  his  Reports.  The  question  there  was  as  to  th€ 
right  for  the  Cro^\^l  to  dispense  with  certain  statutes  regulating  the 
sale  of  wine,  and  to  license  the  Vintners'  Company  to  do  certain  acts 
notwithstanding  those  statutes. 

In  the  course  of  his  judgment  the  Chief  Justice  says  (Vaughan, 
351),  "A  dispensation  or  Ucense  properly  passeth  no  interest,  nor 
alters  or  transfers  property  in  anything,  but  only  makes  an  action 
lawful,  which  vfithout  it  had  been  unlawful.  As  a  license  to  go  be- 
yond the  seas,  to  hunt  in  a  man's  park,  to  come  into  his  house,  are 
only  actions  which,  without  license,  had  been  unlavi^ul.  But  a  license 
to  hunt  in  a  man's  park,  and  carry  away  the  deer  killed  to  liis  own 
use;  to  cut  down  a  tree  in  a  man's  ground,  and  to  carry  it  away  the 
next  day  after  to  his  own  use,  are  licenses  as  to  the  acts  of  hunting 


CHAP.  III.]  WOOD    V.    LEADBITTER.  791 

and  cutting  do^Ti  the  tree,  but  as  to  the  carrjdng  away  of  the  deer 
killed  and  tree  cut  down,  thej^  are  grants.  So,  to  Ucense  a  man  to  eat 
my  meat,  or  to  fire  the  wood  in  my  chimney  to  warm  him  by,  as  to 
the  actions  of  eating,  firing  my  wood,  and  warming  him,  they  are 
licenses;  but  it  is  consequent  necessarily  to  those  actions  that  my 
property  may  be  destroyed  in  the  meat  eaten,  and  in  the  wood 
burnt.  So  as  in  some  cases,  by  consequent  and  not  directlj^  and 
as  its  effect,  a  dispensation  or  license  may  destro}'  and  alter  prop- 
erty." 

Now,  attending  to  this  passage,  in  conjunction  with  the  title 
"License"  in  Brooke's  Abridgment,  from  which,  and  particularly 
from  paragraph  15,  it  appears  that  a  license  is  in  its  nature  revocable, . 
we  have  before  us  the  whole  principle  of  the  law  on  this  subject.  A 
mere  license  is  revocable:  but  that  wliich  is  called  a  license  is  often 
sometliing  more  than  a  license;  it  often  comprises  or  is  connected 
with  a  grant,  and  then  the  party  who  has  given  it  cannot  in  general 
revoke  it,  so  as  to  defeat  his  gTant,  to  wliich  it  was  incident. 

It  may  further  be  obseiwed,  that  a  license  under  seal  (provided  it 
be  a  mere  license)  is  as  revocable  as  a  license  by  parol;  and,  on  the 
other  hand,  a  license  by  parol,  coupled  with  a  grant,  is  as  irrevocable 
as  a  license  by  deed,  coupled  with  a  grant,  pro^dded  only  that  the 
grant  is  of  a  nature  capable  of  being  made  bj^  parol.  But  where  there 
is  a  license  by  parol,  coupled  with  a  parol  grant,  or  pretended  grant, 
of  something  which  is  incapable  of  being  gi-anted  otherwise  than  b}' 
deed,  there  the  license  is  a  mere  license;  it  is  not  an  incident  to  a  valid 
grant,  and  it  is  therefore  revocable.  Thus,  a  license  by  A  to  hunt  in 
his  park,  whether  given  by  deed  or  by  parol,  is  revocable;  it  merely 
renders  the  act  of  hunting  lawful,  which,  without  the  Ucense,  would 
have  been  unlawful.  If  the  Hcense  be,  as  put  by  Chief  Justice. 
Vaughan,  a  license  not  only  to  hunt,  but  also  to  take  away  the  deer 
when  killed  to  his  own  use,  this  is  in  truth  a  grant  of  the  deer,  with  a 
license  annexed  to  come  on  the  land:  and  supposing  the  grant  of  the 
deer  to  be  good,  then  the  license  would  be  irrevocable  by  the  party 
who  had  given  it;  he  would  be  estopped  from  defeating  his  own  grant, 
or  act  in  the  nature  of  a  grant.  But  suppose  the  case  of  a  parol 
license  to  come  on  my  lands,  and  there  to  make  a  watercourse,  to 
flow  on  the  land  of  the  licensee.  In  such  a  case  there  is  no  valid  grant 
of  the  watercourse,  and  the  license  remains  a  mere  license,  and  there- 
fore capable  of  being  revoked.  On  the  other  hand,  if  such  a  license 
were  granted  by  deed,  then  the  question  would  be  on  the  construction 
of  the  deed,  whether  it  amounted  to  a  grant  of  the  watercourse;  and 
if  it  did,  then  the  license  would  be  irrevocal)lc. 

Having  premised  tlicse  remarks  on  the  general  doctrine,  we  will 
proceed  to  consider  the  four  cases  relied  on  bj'  Mr.  Jcrvis  for  the 
plaintiff. 

[The  learned  judge,  after  reviewing  the  authorities,  announced 


792  COOK    V.    STEARNS.  [cHAP,  III. 

that  the  court  was  of  opmion  that  the  direction  given  to  the  jury  at 
the  trial  was  correct.] 

Note.  —  McCrea  v.  Marsh,  12  Gray  (Mass.)  211.  The  plaintiff 
bought  a  ticket  to  a  theatre,  but,  on  the  ground  of  his  color,  was  not 
permitted  to  enter.  The  court  held  that  by  the  purchase  of  the  ticket 
the  plaintiff  had  secured  only  a  revocable  Hcense  and  that,  after  it 
was  revoked,  his  attempt  to  enter  the  theatre  was  unwarranted. 
In  Burton  v.  Scherpf,  1  All.  (Mass.)  133,  a  like  decision  was  reached, 
where  the  plaintiff  was  requested  to  leave,  after  he  had  entered  but 
before  he  had  taken  his  seat. 

The  doctrine  that  a  theatre  ticket  gives  only  a  revocable  license 
was  approved  in  People  v.  Flynn,  189  N.Y.  180,  185;  Homey  v. 
Nixon,  213  Pa.  20.  (Cf.  Drew  v.  Peer,  93  Pa.  234.)  The  law  was  made 
otherwise  by  statute  in  California.  See  Greenberg  v.  Western  Turf 
Association,  140  Cal.  357. 

Doubt  has  recently  been  cast  by  an  English  court  on  the  authority 
of  the  principal  case.  See  Hurst  v.  Picture  Theatres  (Limited),  decided 
in  November,  1913,  and  reported  in  30  Times  Law  Reports  98  (the 
case  was  not  inserted  in  the  official  reports).  The  plaintiff  claimed 
that  he  purchased  a  ticket.  The  defendant  claimed  tha,t  he  took  a 
seat  without  having  purchased  a  ticket.  The  jury  found  for  the 
plaintiff  on  this  question.  The  plaintiff,  after  he  had  talcen  a  seat, 
was  requested  to  leaA^e,  and,  upon  his  refusing  to  leave,  was  ejected. 
The  jury  assessed  the  damages  at  £150.  Mr.  Justice  Channell  said 
that  he  had  come  to  the  conclusion  that  the  case  of  Wood  v.  Lead- 
bitter  was  now  obsolete,  on  the  ground  that  there  was  now  a  contract 
between  the  theatre  proprietors  and  the  taker  of  a  seat,  without  the 
necessity  for  a  seal.  And  if  the  seat-holder  had  paid  for  his  seat  and 
behaved  himself  quietly  he  had  a  right  to  see  the  show.  It  might  be 
called  an  equity,  but,  whatever  it  was,  the  visitor  was  entitled  to 
retain  his  seat  so  long  as  he  behaved  himself  and  kept  within  the 
regulations  laid  down  by  the  management. 

In  Miller  v.  State,  39  Ind.  267,  the  court  held  that  if  A  gave  B,  for 
a  valuable  consideration,  a  license  to  enter  on  A's  land  and  gather 
corn,  but  later  forbade  B  to  enter,  B's  entry  to  gather  the  corn  was 
lawful. 


COOK  V.  STEARNS. 

11  Mass.  533.     1814. 

Trespass  quare  clauswn  Jregit.  The  defendant,  as  to  the  breaking 
and  entering  the  plaintiff's  close  in  the  declaration  mentioned,  and 
digging  up  the  soil  thereof,  pleads  in  bar,  that  long  before  the  plain- 


CHAP.  III.]  COOK    V.    STEARNS.  793 

tiff  had  anything  in  the  said  close,  viz.  on  the  1st  of  September,  1805, 
he  the  said  Stearns  was,  aiid  continually  hitherto  hath  been,  and  still 
is,  lawfully  possessed  of  a  certain  other  close,  situate  in,  &c.,  and 
being  near  to  the  plaintiff's  close;  on  which  said  other  close  of  him 
the  said  Stearns  there  had  been  theretofore  erected  a  certain  water 
mill,  and  also  part  of  a  certain  mill  dam  and  embankment,  made  for 
the  purposes  of  forming  a  basin  or  canal,  and  thereby  raising  a  suffi- 
cient head  of  water  for  worldng  said  mill;  and  that  a  certain  other 
part  of  the  same  mill  dam  and  embankment  w^as  then  and  there  made 
in  and  upon  the  plaintiff's  said  close,  in  which,  &c.,  hy  and  with  the 
con,sent  legally  obtained  of  Nehemiah  and  Eliakim  Estabrook,  who  were 
then  and  there  lawfully  seized  of  the  same :  which  said  mill  dam  and 
embankment,  so  made  for  the  pui-pose  aforesaid,  it  always  hath  been 
necessary,  and  at  the  time  of  the  supposed  trespass  it  was  necessary 
to  keep  and  maintain  in  repair,  in  order  to  raise  a  sufficient  head  of 
water  for  working  said  mill  to  the  best  advantage :  —  and  that  at  the 
said  time  when,  &c.,  a  part  of  the  said  dam  and  embankment  situate 
in  the  said  close  of  the  plaintiff  was  broken  and  cut  through  for  the 
space  of  tw^elve  feet,  and  that  the  said  basin  or  canal  was  obstructed 
and  filled  with  stones  and  gravel,  whereby  the  water  therein,  which 
used  and  of  right  ought  to  flow  to  the  said  mill,  and  which  was  neces- 
sary for  the  working  thereof,  was  wholly  diverted  therefrom,  so  that 
the  same  mill  could  not  be  wrought.  —  Wherefore  the  defendant,  at 
the  time  when,  &c.,  entered  the  said  close  of  the  plaintiff,  for  the  pur- 
pose of  removing  the  said  obstructions,  and  repairing  the  said  dam 
and  embankment,  which  he  accordingly  did,  in  order  to  raise  a  suffi- 
cient head  of  water  for  working  said  mill,  as  it  was  lawful  for  him  to 
do  for  the  cause  aforesaid :  and  m  so  doing  did  necessarily  dig  up  a 
little  of  the  soil  of  the  said  close,  doing  no  damage  to  the  plaintiff  on 
that  occasion:  which  is  the  same  trespass,  &c. 

To  this  plea  the  plaintiff  demurs,  assigning  the  following  causes  of 
demurrer:  1.  That  it  does  not  appear  by  the  said  plea,  that  the  said 
Steams,  by  any  legal  or  sufficient  conveyance,  ever  acquired  or  had 
any  permanent  or  good  right  or  authority  to  keep  up  or  repair  said 
dam,  or  to  enter  upon  the  said  close  for  that  or  any  other  purpose. 
2.  That  it  does  not  appear  by  said  plea,  that  the  said  stream  or 
water  course  was  an  ancient  stream  or  water  course ;  or  that  the  said 
Stearns  had  any  right  to  flow  the  same  over  the  said  close.  And  the 
defendant  joins  in  demurrer. 

Parker,  C.J.  The  question  presented  by  the  demuirer  and 
joinder  in  this  case  is,  whether  the  facts  set  forth  in  the  plea  in  bar 
amount  to  a  justification  of  the  trespass  complained  of  in  the 
declaration. 

The  possession  of  the  locus  in  quo  is  admitted  to  be  in  the  plaintiff; 
and  no  title  to  it  is  claimed  by  the  defendant  in  his  plea.  But  he 
claims  a  right  to  enter  upon  it,  for  the  purpose  of  repairing  the  dam 


794  COOK    V.    STEARNS.  [CHAP.  HI. 

and  bank,  and  clearing  the  canal  from  obstructions;  because  those, 
whose  estate  the  plaintiff  now  holds,  permitted  him  to  enter  and 
make  the  bank,  and  dig  the  canal ;  from  which  permission  he  would 
infer  a  right  to  enter  and  use  the  soil  as  often  as  the  state  of  the  mill 
owTied  by  him  should  require  it.  He  has  not  described  the  mill  as 
ancient,  nor  set  up  any  prescriptive  right  to  an  easement  in  the  close 
of  the  plaintiff:  but  alleges  that  he  had  the  consent,  legally  obtained, 
to  erect  his  works,  of  the  former  owner  of  the  close;  and  because  of 
that  consent,  the  works  bemg  out  of  repair,  he  entered  to  make  the 
necessary  repairs. 

It  is  evident,  therefore,  that  the  defendant  claims  a  permanent 
interest  in  the  plaintiff's  close,  a  right  to  maintain  the  bank,  dam  and 
canal,  which  he  formerly  placed  there  by  consent,  and  to  enter  upon 
the  plaintiff's  close  at  any  time  to  make  necessary  repairs.  —  Now 
this  is  an  interest  in  land,  which  cannot  by  our  statute  of  1783,  c.  37, 
pass  without  deed  or  writing;  for  all  interests  in  land,  according  to 
that  statute,  whether  certain  or  uncertain,  are  declared  to  be  estates 
at  will,  unless  the  evidence  of  them  exists  in  deed  or  writing;  and  if  a 
continuation  of  the  interest  is  intended  for  seven  years,  it  must  not 
only  be  passed  by  deed,  but  the  deed  must  be  acknowledged  and 
registered,  in  the  same  manner  as  is  required  in  the  transfer  of  a  fee. 

The  defendant  not  having  alleged  that  he  acquired  the  right,  which 
he  claims,  by  deed  or  writing,  his  plea  is  for  that  cause  bad.  After  a 
verdict,  perhaps,  this  defect  would  be  cured:  because  it  would  be 
presumed  that  the  evidence,  which  the  law  requires  to  establish  such 
an  interest  as  is  claimed,  had  been  exhibited :  but  on  demurrer,  where 
a  right  in  land  is  set  up  as  a  satisfaction  for  a  trespass,  the  manner 
in  which  that  right  was  acquired  should  be  averred,  that  the  court 
may  immediately  determine  whether  it  was  a  lawful  conveyance  of 
the  right  or  not. 

But  the  counsel  for  the  defendant,  aware  that  they  could  not  set 
up  any  estate  of  a  permanent  nature  in  the  plaintiff's  close,  without 
averring  and  proving  a  deed  or  some  other  lawful  conveyance,  have 
considered  the  facts  alleged  in  his  plea  as  amounting  to  a  license, 
given  him  by  the  former  owner  of  the  land,  to  make  the  dam,  bank 
and  canal:  and  they  have  contended,  fii-st,  that  such  license  may  be 
by  parol:  and  secondly,  that  it  is  not  in  its  nature  count ermandable; 
from  which  they  would  infer  that  a  right  continues  in  him  to  main- 
tain the  dam,  &c.,  and  to  enter  upon  the  plaintiff's  close  to  repair 
them  toties  quoties,  &c. 

This  argument  had  some  plausibility  in  it,  when  it  was  first  stated; 
but  upon  more  mature  consideration  it  seems  to  have  no  foundation 
in  principles  of  law. 

A  license  is  technically  an  authority  given  to  do  some  one  act,  or  a 
series  of  acts  on  the  land  of  another,  without  passing  any  estate  in 
the  land.  Such  as  a  license  to  hunt  in  another's  land,  or  to  cut  down  a 


CHAP,  ni.]  COOK    V.    STEARNS.  795 

certain  number  of  trees.  These  are  held  to  be  revocable  when  ex- 
cutory,  unless  a  definite  tenn  is  fixed,  but  irrevocable  when  exe- 
cuted. See  Viner's  Abridgment,  title  License,  A.  E.  D.  G.  and  the 
authorities  therein  cited,  which  have  been  examined  and  found  to 
support  the  positions  laid  down  by  the  compiler.  It  is  also  holden 
that  such  Kcenses  to  do  a  particular  act,  but  passing  no  estate,  may 
be  pleaded  without  deed.  But  licenses,  which  in  their  nature  amount 
to  the  granting  of  an  estate  for  ever  so  short  a  time,  are  not  good 
without  deed,  and  are  considered  as  leases,  and  must  always  be 
pleaded  as  such. 

The  distinction  is  obvious.  Licenses  to  do  a  particular  act  do  not 
in  any  degi-ee  trench  upon  the  policy  of  the  law,  which  reciuires  that 
bargains  respecting  the  title  or  interest  in  real  estate  shall  be  by  deed 
or  in  writing.  They  amount  to  nothing  more  than  an  excuse  for  the 
act,  which  would  otherwise  be  a  trespass.  But  a  permanent  right  to 
hold  another's  land  for  a  particular  pui-pose,  and  to  enter  upon  it  at 
all  times  without  his  consent,  is  an  important  interest,  which  ought 
not  to  pass  without  writing,  and  is  the  very  object  provided  for  by 
our  statute.  If  the  defendant  had  a  license  from  the  former  owners  of 
the  plaintiff's  close,  to  make  the  bank,  dam  and  canal  in  their  land, 
this  extended  only  to  the  act  done,  so  as  to  save  him  from  their  action 
of  trespass  for  that  particular  act:  but  it  did  not  carry  with  it  an 
authority,  at  any  future  time,  to  enter  upon  the  land.  As  to  so  much 
of  the  Hcense  as  was  not  executed,  it  was  countermandable ;  and 
transferring  the  land  to  another,  or  even  leasing  it,  without  any  reser- 
vation, would  of  itself  be  a  countermand  of  the  license.  For  although, 
when  one  is  permitted  to  do  certain  things  upon  the  land  of  another, 
an  impHed  authority  is  given  to  enter  upon  the  land  to  do  the  thing, 
and  to  repair  it,  if  it  is  of  a  permanent  nature;  yet  the  first  permission 
or  license  must  be  by  grant,  in  order  to  draw  after  it  this  consequence. 

We  are  also  all  satisfied,  that  the  plea  is  in  this  respect  bad;  it  not 
shewing  such  a  license  as  may  be  pleaded,  and  indeed  the  interest 
claimed  being  not  in  the  nature  of  a  license,  but  of  an  estate,  or  at 
least  an  easement  in  the  land,  which  cannot  be  acquired  without 
writing  or  prescription,  or  such  a  possession  or  use  as  furnishes  pre- 
sumption of  a  grant:  neither  of  which  is  averred  in  this  plea. 

If  the  defendant's  plea  were  held  to  be  a  bar  to  the  action,  all  the 
mischiefs  and  uncertainties,  which  the  legislature  intended  to  avoid 
by  requiring  such  bargains  to  be  put  in  writing,  would  be  revived; 
and  purchasers  of  estates  would  be  without  the  means  of  knowing 
whether  incumbrances  existed  or  not  on  the  land  which  they  pur- 
chase. 

The  defendant's  plea  is  adjudged  bad. 

Note.  —  For  other  authorities  that  a  license  is  not  effective  against 
the  grantee  of  the  licensor,  see  Jenkins  v.  Lykes,  19  Fla.  148;  Kamp- 


796  WOOD    V.    MANLEY.  [CHAP.  lU. 

house  V.  Gaffner,  73  111.  453;  Houx  v.  East,2Q  Mo.  178;  Vollmer's 
Appeal,  61  Pa.  118. 

Drake  v.  Wells,  11  All.  (Mass.)  141.  A,  owner  of  land,  for  a  valu- 
able consideration  gave  a  license  to  B  to  enter  and  cut  timber,  and 
retain  such  timber  for  his  own  use.  A  then  conveyed  the  land  to  C, 
who  had  notice  of  the  license.  It  was  held  that  the  Hcense  was  not 
effective  against  C. 

Bruley  v.  Garvin,  105  Wis.  625.  A,  owner  of  land,  for  a  valuable 
consideration  gave  a  license  to  B  to  enter  and  cut  timber,  and  retain 
such  timber  for  his  own  use.  A  then  contracted  to  sell  the  land  to  C. 
It  was  held  that  this  contract  terminated  the  license  even  if  B  had 
no  notice  of  the  contract.  The  court  said  (p.  629) :  "  A  parol  license  to 
cut  timber  on  the  licensor's  land  is  simply  authority  to  do  certain 
acts  upon  another's  land.  It  is  gone  if  the  hcensor  deed  the  land  to 
another,  or  if  either  party  die.  The  authority  is  ended  by  the  transfer 
of  the  title  or  by  the  fact  of  death,  and  no  notice  thereof  is  neces- 
sary."  Cf.  Dame  v.  Dame,  38  N.H.  429,  432. 

A  license  is  terminated  by  the  death  of  either  the  licensor  or  li- 
censee, and  is  not  assignable.  Prince  v.  Case,  10  Conn.  375;  Blaisdell 
V.  Portsmouth  Railroad,  51  N.H.  483. 


WOOD  V.  MANLEY. 

11  Ad.  &  E.  34.     1839. 

Trespass  for  breaking  and  entering  plaintiff's  close. 

Plea  (besides  others  not  material  here),  as  to  entering  the  close, 
that  defendant,  before  the  time  when,  etc.,  was  lawfully  possessed  of 
a  large  quantity  of  hay,  which  was  upon  plaintiff's  close  in  which,  etc., 
and  that  defendant,  at  the  times  when,  etc.,  by  leave  and  licence  of 
the  plaintiff  to  him  for  that  purpose  first  given  and  granted,  peace- 
ably entered  the  close,  to  carry  off  the  said  hay,  and  did  then  and 
there  peaceably  take  his  said  hay  from  and  out  of  the  said  close,  as 
he  lawfully,  etc.,  which  are  the  said  alleged  trespasses,  etc.  Repli- 
cation, de  injuria. 

On  the  trial,  before  Erskine,  J.,  at  the  last  Somersetshire  assizes, 
it  appeared  that  the  plaintiff  was  tenant  of  a  farm,  including  the 
locus  in  quo;  and  that,  his  landlord  having  distrained  on  him  for  rent, 
the  goods  seized,  comprehending  the  hay  mentioned  in  the  plea,  were 
sold  on  the  premises;  the  conditions  of  the  sale  being,  that  the  pur- 
chasers might  let  the  hay  remain  on  the  premises  till  the  Lady-day 
following  (1838),  and  enter  on  the  premises  in  the  mean  while,  as 
often  as  they  pleased,  to  remove  it.  The  defendant  purchased  the 
hay  at  the  sale:  and  evidence  was  given  to  shew  that  the  plaintiff  was 
a  party  to  these  conditions.  After  the  sale,  on  26th  January,  1838, 


CHAP.  III.]  WOOD   V.   ^LA.NLEY.  797 

plaintiff  served  upon  defendant  a  written  notice  not  to  enter  or  com- 
mit any  trespass  on  his,  tiie  plaintiff's,  premises.  In  February  fol- 
lowing, defendant  served  plaintiff  with  a  written  demand  to  deliver 
up  the  hay,  or  to  suffer  him,  defendant,  to  have  access  thereto  and 
carry  it  away;  threatening  an  action  in  default  thereof.  The  plaintiff, 
however,  locked  up  the  gate  leading  to  the  locus  in  quo,  where  the 
hay  was;  and  the  defendant,  on  1st  March,  1838,  broke  the  gate 
open,  entered  the  close,  and  carried  away  the  hay.  The  learned  judge 
told  the  jury  that,  if  the  plaintiff  assented  to  the  conditions  of  sale 
at  the  time  of  the  sale,  this  amounted  to  a  licence  to  enter  and  take 
the  goods,  which  licence  was  not  revocable :  and  he  therefore  directed 
them  to  find  on  this  issue  for  the  defendant,  if  they  thought  the 
plaintiff  had  so  assented.   Verdict  for  the  defendant. 

Lord  Denman,  C.J.  jMr.  Crowder's  argument  goes  this  length;  — 
that,  if  I  sell  goods  to  a  party  who  is,  bj''  the  terms  of  the  sale,  to  be 
permitted  to  come  and  take  them,  and  he  pays  me,  I  may  afterwards 
refuse  to  let  him  take  them.  The  law  countenances  nothing  so  absurd 
as  this :  a  licence  thus  given  and  acted  upon  is  ii-revocable. 

Note.  —  See,  accord,  Long  v.  Buchanan,  27  Md.  502;  Heath  v. 
Randall,  4  Cush.  (Mass.)  195. 

In  Wood  V.  Leadbitter,  supra,  Alderson,  B.,  commenting  on  the 
principal  case,  said  (p.  853) :  "This  was  a  case  not  of  a  mere  license, 
but  of  a  license  coupled  with  an  interest.  The  hay,  by  the  sale, 
became  the  property  of  the  defendant,  and  the  license  to  remove  it 
became,  as  in  the  case  of  the  tree  and  the  deer,  put  by  C.J.  Vaughan, 
irrevocable  by  the  plaintiff." 

Similarly,  if  for  a  valuable  consideration  a  Hcense  has  been  given 
to  enter  and  cut  timber  for  the  licensee's  use,  and  the  Ucensee  has 
entered  and  cut  timber,  the  title  to  such  timber  is  in  the  licensee,  and 
although  the  licensor  forbid  him  to  enter  to  remove  it,  the  licensee 
is  not  a  trespasser  when  he  enters  for  such  purpose.  Nettletonv.  Sikes, 
8  Met.  (Mass.)  34. 

Similarly,  where  the  licensor,  who  had  been  a  postmaster,  gave 
permission  to  his  successor  to  enter  upon  his  land  to  take  personal 
property  to  the  possession  of  which  the  successor  was  entitled  by 
virtue  of  his  office.  Sterling  v.  Warden,  51  N.H.  217. 

Similarly,  if  the  licensor  pei-mit  the  licensee  to  place  a  chattel, 
belonging  to  the  licensee^  upon  the  land  of  the  licensor,  and  the 
licensee  so  places  his  chattel,  he  is  not  a  trespasser  when  he  enters  to 
remove  it,  although  the  licensor  has  forbidden  his  entry.  Giles  v. 
Simonds,  15  Gray  (Mass.)  441,  442. 

It  Ls  submitted  that  it  is  consistent  with  the  authorities,  and  that 
it  is  desirable,  to  confine  the  doctrine  of  licenses  "coupled  with  an 
interest"  to  cases  where  the  license  is  to  be  upon  the  land  of  the 
licensor  for  the  purpose  of  removing  a  chattel  to  the  possession  of 
which  the  licensee  is  entitled. 


798  LEHIGH    R.R.    CO.    V.    BANGOR    RY.    CO.  [cHAP.  III. 

A  license  coupled  with  an  interest  is  assignable.  It  has  been  held 
that  a  Ucense  to  cut  and  remove  timber  may  be  assigned  before  the 
timber  is  cut.  See  Basset  v.  Maynard,  Cro.  Eliz.  819;  Heflin  v. 
Bingham,  56  Ala.  566;  Sawyer  v.  Wilson,  61  Me.  529. 

The  authority  is  scant  on  the  question  whether  a  Hcense  coupled 
with  an  interest  is  effective  against  a  gi'antee  of  the  licensor.  In 
Yale  V.  Seely,  15  Vt.  221,  the  Ucense  was  declared  to  be  effective 
against  a  person  who  had  contracted  to  purchase  the  land,  without 
notice  of  the  license,  and  had  been  let  into  possession.  In  Jenkins  v. 
Lykes,  19  Fla.  148,  the  licensee  cut  timber,  and,  after  the  hcensor  had 
transferred  the  land,  entered  and  removed  it.  The  court  held  (p.  160) 
that  it  was  error  to  allow  the  grantees  to  recover  the  value  of  the 
lumber  "even  if  they  could  have  an  action  of  trespass  to  recover 
nominal  damages  for  going  on  the  land  to  get  the  timber." 

It  is  submitted  that  a  license,  even  if  coupled  with  an  interest,  is 
not  an  interest  in  the  land,  and  therefore  should  not  be  effective 
against  the  grantee  of  the  licensor.  If  the  grantee  of  the  hcensor 
refuses  either  to  deliver  the  chattel,  or  to  allow  an  entry  for  its 
removal,  it  seems  that  he  converts  the  chattel.  See  Nichols  v. 
Newson,  supra,  and  cases  cited  in  the  note  on  p.  333.  The  rights  of 
the  owner  of  the  chattel  are  thus  sufficiently  protected. 


LEHIGH  R.R.   CO.   v.  BANGOR  RY.   CO. 

228  Pa.  350.     1910. 

Opinion  by  Mr.  Justice  Elkin. 

The  appellee  company  sought  and  obtained  an  injunction  in  the 
court  below  to  restrain  appellant  from  crossing  its  tracks  at  grade. 
Both  companies  are  domestic  corporations  organized  and  created  to 
operate  lines  of  steam  railroad  under  the  act  of  1868.  The  North- 
ampton Railroad  Company,  no  longer  existing  and  not  a  party  to 
this  proceeding,  was  also  incorporated  for  the  same  purpose  under 
the  same  act.  In  1903,  the  last-named  company  entered  into  an 
agreement  in  writing  with  the  appellant  company  gi-anting  the  right 
to  cross  its  tracks  at  grade  upon  the  conditions  and  regulations  stipu- 
lated therein.  This  agreement  was  not  recorded  and  therefore  subse- 
quent purchasers,  owners  or  successors  in  title,  were  not  affected  with 
constructive  notice  of  any  right,  privilege  or  interest  claimed  under 
it.  Soon  after  the  execution  of  this  agreement  all  the  rights,  privi- 
leges, franchises  and  property'  of  the  Northampton  company  passed 
to  appellee  company  by  merger  under  the  act  of  1901.  At  the  time 
of  the  merger  the  crossing  had  not  been  constructed  and  no  attempt 
had  been  made  to  assert  any  rights  or  privileges  under  the  agree- 
ment.  When  the  merger  proceedings  were  completed  in  1903,  the 


CHAP.  III.]  LEHIGH    R.R.  CO.    V.    BANGOR    RY.  CO.  799 

Northampton  company  passed  out  of  legal  existence  and  is  no  longer 
a  corporate  entity.  In  1909,  nearly  six  years  subsequent  to  the  grant 
relied  on,  and  almost  as  long  after  the  grantor  company  had  ceased 
to  exist,  the  directors  of  appellant  company  bj-  resolution  approved, 
ratified  and  adopted  the  line,  sun^ey  and  location  of  the  branch  and 
crossmg  contemplated  in  the  original  agreement  and  authorized  the 
construction  of  the  same.  This  was  the  first  step  taken  to  assert  any 
right  or  privilege  under  the  agreement  and  it  was  taken  many  years 
after  one  of  the  contracting  parties  had  passed  out  of  existence.  It  is 
contended  that  this  burden  followed  the  merger  and  must  be  borne 
by  the  company  succeeding  to  the  rights  thus  obtained.  This  de- 
pends largely  upon  the  grant  itself  and  the  nature  of  the  privilege  or 
interest  gi-anted.  Was  it  a  mere  hcense  to  cross  or  was  it  an  easement 
running  with  the  land?  The  learned  court  below  after  full  considera- 
tion held  it  to  be  a  license  and  not  an  easement,  and  this  conclusion 
is  concurred  in  here.  A  license  in  respect  to  real  estate  has  been 
defined  to  be  an  authority  to  do  a  particular  act  or  series  of  acts  on 
the  land  of  another  without  possessing  an  estate  or  interest  therein, 
while  an  easement  always  implies  an  interest  in  the  land  in  or  over 
which  it  is  to  be  enjoyed.  In  the  grant  of  an  easement  two  distinct 
elements  are  involved,  a  dominant  tenement  to  which  the  right  is 
appurtenant,  and  a  servient  tenement  upon  which  the  servitude  is 
imposed.  A  license  is  in  the  nature  of  a  personal  privilege  and  may 
be  revoked  before  any  rights  have  been  asserted  under  it,  or  money 
expended  on  the  faith  of  the  privilege  granted.  The  dividing  hne 
between  a  license  and  an  easement  is  frequently  somewhat  obscure 
and  not  easily  distinguished.  The  distinction  must  of  necessity 
depend  upon  the  interpretation  of  the  terms  of  the  grant.  If  an  ease- 
ment be  granted  in  terms,  or  by  language  from  which  such  an  interest 
under  settled  rules  of  construction  is  implied,  the  covenants  will  be 
accordingly  enforced.  Where  the  language  used  is  of  doubtful  import 
it  is  for  the  court  to  construe  the  instrument  and  determine  whether 
the  grant  is  of  a  permanent  interest  running  with  the  land,  or  only  a 
personal  privilege  affecting  the  rights  of  the  parties.  In  the  present 
case  it  is  doubtful,  to  say  the  least,  whether  there  is  in  any  proper 
legal  sense  both  a  dominant  and  servient  tenement  to  make  the  doc- 
trine of  easements  applicable  at  all.  The  contracting  parties,  two 
railroad  companies,  were  not  dealing  about  lands,  or  estates  or  intci-- 
ests  in  land,  but  confined  their  negotiations  and  agreement  to  the 
privilege  of  crossing  tracks.  The  words  of  the  grant  are,  "The  party 
of  the  first  part  hereby  grants  to  the  party  of  the  second  part  the 
right  to  cross  with  single  track  the  tracks  of  the  party  of  the  first 
part."  The  thing  granted  was  the  privilege  of  crossing  tracks  and  no 
words  are  used  indicating  an  intention  to  grant  an  interest  in  land. 
The  agreement  is  silent  as  to  how  long  the  privilege  was  to  be  enjoyed 
and  we  fail  to  find  anything  contained  therein  to  indicate  an  inten- 


800  LEHIGH    R.R.    CO.    V.    BANGOR    RY.    CO.  [cHAP.  III. 

tion  to  grant  an  interest  running  with  land.  The  grant  is  only  to  the 
party  of  the  second  part,  not  to  its  successors  and  assigns.  No  words 
are  used  to  suggest  a  grant  in  perpetuity,  such  as  "at  all  times,"  or 
"hereafter  forever,"  or  to  "its  successors  and  assigns  forever,"  or 
any  other  like  phrases,  which  have  been  held  in  some  cases  to  create 
an  easement.  There  is  nothing  in  the  language  of  the  covenant,  nor 
in  the  parties  to  the  agi-eement,  to  indicate  anything  more  than  the 
grant  of  a  privilege  in  the  nature  of  a  license  by  the  party  of  the  first 
part  to  the  party  of  the  second  part  to  cposs  its  tracks  at  grade.  The 
second  party  failed  to  exercise  the  privilege  during  the  coiporate 
existence  of  the  party  gi-anting  it,  and  made  no  attempt  to  do  so  for 
nearly  six  years  after  the  rights,  privileges  and  franchises  of  the  party 
of  the  first  part  had  passed  to  the  appellee  company  under  the  merger 
proceedings.  It  is  doubtful  whether  the  pri\'ilege  thus  gi-anted  was 
a  debt,  liabilit}^  or  duty  imposed  upon  the  consohdated  company 
within  the  meaning  of  the  act  of  1901,  but  even  if  it  was,  the  nature 
of  the  obligation  was  not  changed  by  the  merger,  and  the  character 
of  the  privilege  remained  the  same  after  the  merger  as  before  it  took 
place.  It  was  at  all  times  a  revocable  pri\alege  until  moneys  had 
been  expended,  or  work  had  been  done  on  the  faith  of  it,  and  nothing 
of  this  kind  had  been  done  up  to  the  time  of  filing  this  bill.  It  being 
a  license  or  privilege  to  cross  tracks,  and  not  an  easement  running 
with  land,  the  right  of  revocation  ran  with  the  grant  and  could  be 
exercised  at  any  time.before  execution.  The  suggestion  of  the  learned 
court  below  that  the  license  not  having  been  executed  was  revoked 
by  the  merger  we  are  inclined  to  think  is  entirely  sound,  but  whether 
it  was  so  revoked  or  not,  the  right  of  revocation  at  least  followed  the 
merger  and  the  filing  of  this  bill  to  restrain  the  construction  of  the 
crossing  is  a  sufficient  notice  and  exercise  of  such  revocable  act. 
While  other  interesting  questions  have  been  considered  and  discussed 
by  the  court  and  counsel  no  useful  purpose  will  be  served  by  going 
over  this  ground,  because  if  the  grant  relied  on  is  a  mere  hcense,  and 
the  court  below  and  here  so  hold,  that  is  an  end  of  the  case.  Our  own 
cases  furnish  ample  authority  for  holding  the  present  grant  to  be  a 
license:  Huff  v.  McCaidey,  53  Pa.  206;  Baldwin  v.  Taylor,  166  Pa. 
507;  Willis  v.  Railway  Co.,  188  Pa.  56;  Park  Steel  Co.  v.  Railway  Co., 
213  Pa.  322.  While  it  is  true  licenses  are  usually  given  by  parol,  they 
may  be  confen-ed  by  instruments  in  writing.  The  nature  and  char- 
acter of  the  grant  do  not  depend  upon  the  manner  of  making  it,  nor 
is  the  rule  of  revocability  affected  thereby:  1  Washburn  on  Real 
Property,  629;  25  Cyc.  645. 

Decree  affirmed  at  cost  of  appellant. 

Note. —  In  Wood  v.  Leadbitter,  supra,  Alderson,B.,  said  (p.  845): 
"It  may  further  be  observed,  that  a  license  under  seal  (provided  it 
be  a  mere  license)  is  as  revocable  as  a  license  by  parol."  See,  accord, 


CHAP.  III. I  LEHIGH    R.R.    CO.    V.    BANGOR    RY.    CO.  801 

Doe  V.  Wood,  2  B.  &  Aid.  724;  East  Jersey  Iron  Co.  v.  Wright,  32  N.J. 
Eq.  248,  253;  Funk  v.  Haldeman,  53  Pa.  229. 

A  profit  or  easement  cannot,  at  the  common  law,  be  created  by  an 
instrument  not  under  seal.  But  it  by  no  means  follows  that  every 
right  to  use  the  land  of  another,  given  by  an  instrument  under  seal, 
creates  a  profit  or  easement. 

The  student  should  distinguish  between  (1)  a  lease  of  land  which 
gives  the  lessee  the  exclusive  right  to  the  possession  of  the  land; 
(2)  a  conveyance  of  part  of  the  land  as  the  unsevered  timber  or  min- 
erals, which  gives  the  grantee  title  to  such  timber  or  minerals,  with  all 
rights  of  wa}--  necessary  to  make  such  title  available  (see  Sheppard's 
Touchstone,  89);  (3)  a  profit,  which  gives  an  interest  in  the  land 
binding  upon  those  who  acquire  the  title  to  the  land,  and  under 
which  title  may  be  acquired  to  things  severed  from  the  land,  or 
caught  thereon,  but  which  gives  no  title  to  any  part  of  the  land  (see 
cases  cited  in  the  note  on  p.  753,  supra) ;  (4)  an  easement,  which  gives 
an  interest  in  the  land  binding  upon  those  who  acquire  the  title  to 
the  land,  but  which  gives  no  title  to  smy  part  of  the  land  or  any  right 
to  acquire  title  to  things  severed  from  the  land  or  caught  thereon; 
and  (5)  a  license. 

By  an  instrument  under  seal,  A  may  give  B  a  right  to  live  in  his 
house,  or  in  a  part  thereof.  Such  instrument  may  create  a  lease,  but 
if  it  was  not  the  intention  of  the  parties  that  B  should  have  the  exclu- 
sive possession,  it  will  not  be  a  lease,  but  a  license.  See  Smith  v.  St. 
Michael,  Cambridge,  and  the  cases  in  the  note  on  p.  69,  supra; 
and  White  v.  Maynard,  111  Mass.  250,  253. 

Similarly,  the  court  may  be  called  upon  to  determine  whether  an 
instrument  under  seal  amounts  to  a  sale  of  minerals,  or  a  profit  to 
take  minerals,  or  a  license  to  take  minerals.  That  it  is  under  seal  is 
not  decisive  of  the  nature  of  the  right  created  by  it.  The  nature  of 
the  right  must  be  determined  according  to  the  intent  of  the  parties. 

Similarly,  if  by  an  instrument  under  seal  A  gives  B  a  right  to  use 
his  land  (but  not  to  take  away  anything  from  the  land) ,  it  may  well 
be  that  B  has  acquired  no  easement.  Thus,  the  permitted  use  may 
not  be  connected  with  the  enjoyment  of  any  other  land,  and  this 
would  be  fatal  to  the  creation  of  an  easement  in  those  jurisdictions 
which  do  not  permit  easements  in  gross.  See  Boatman  v.  Lasley, 
supra.  Or  the  permitted  use  may  be  such  as  will  not  be  recognized 
as  an  interest  in  land.  See  Hill  v.  Tupper,  supra,  and  the  cases  cited 
in  the  note  on  p.  768.  Or,  even  if  no  considerations  of  public  policy 
prevent  the  creation  of  an  easement,  the  court  may  conclude  that  it 
was  not  the  intention  of  the  parties  to  create  an  easement. 

A  license  is  (laying  aside  the  doctrine  of  licenses  coupled  with  an 
interest)  a  revocable,  non-assignable  right.  An  instrument  under 
scp!  may  create  only  a  license,  if  it  was  the  intention  of  the  parties  to 
create  that  sort  of  right. 


802  EERICK    V.    KERN.  !CHAP.  UL 

RERICK  V.   KERN. 

14  S.  &  R.  (Pa.)  267.     1826. 

On  the  return  of  a  writ  of  error  from  the  Common  Pleas  of  Union 
County,  it  appeared  from  the  record,  that  this  was  a  special  action 
on  the  case,  brought  bj'  Henrj'  Kem,  the  defendant  in  eiTor,  against 
Henry  Rerick,  the  plaintiff  in  error,  for  diverting  a  water-course,  in 
consequence  of  which  he  lost  the  use  of  his  saw  mill.  The  defendant 
pleaded,  not  guilty. 

The  material  facts,  proved  on  the  trial,  were,  that  some  years 
before  the  institution  of  the  suit,  Henry  Kem,  the  plaintiff  below, 
being  about  to  erect  a  saw  mill  on  a  stream  which  was  designated 
by  the  witnesses  as  the  right  hand  stream,  a  better  seat  for  the  mill 
w^as  found  by  his  millwright  on  what  was  termed  the  left  hand 
stream.  Kem  thereupon  applied  to  Rerick  for  permission  to  turn 
the  water  into  the  left  land  stream,  which  was  granted.  In  con- 
sequence of  this  peraiission,  he  built  the  saw  mill  upon  the  left  hand 
stream.  Without  the  aid  of  the  right  hand  stream,  the  water  of  the 
left  hand  stream  would  have  been  wholly  insufficient,  but  the  right 
hand  stream  alone  would  have  served  the  pui-poses  of  the  mill  three 
or  four  months  during  the  year.  By  a  union  of  the  two  streams,  the 
mill  was  rendered  about  a  third  more  valuable  than  it  would  have 
been  with  the  right  hand  stream  alone.  No  deed  was  executed,  nor 
was  any  consideration  given,  but  Kem,  in  consequence  of  the  per- 
mission given  by  Rerick,  built  a  very  good  mill,  which  did  a  great 
deal  of  business,  and  which  he  would  not  have  built  on  the  left  hand 
stream,  if  the  permission  had  not  been  given.  When  the  water  was 
turned  away  by  Rerick,  the  mill  was  in  good  order,  and  it  was  further 
proved,  that,  at  the  time  the  trial  took  place,  there  was  as  much  or 
more  water  in  the  left  hand  stream  than  there  had  been  before  the 
erection  of  the  saw  mill. 

The  President  of  the  Court  of  Common  Pleas  (Chapman) 
charged  the  jury  as  follows:  — 

"Two  questions  arise  in  this  cause.  The  first  is,  whether  Henrj' 
Rerick,  after  permitting  and  agreeing  that  Henr\'  Kem  should  turn 
the  water  from  the  right  hand  stream  to  the  left  hand  stream,  when, 
if  he  had  not  given  that  permission,  he  would  have  built  his  mill 
upon  the  right  hand  stream,  can  he,  Henry  Rerick,  afterwards  with- 
draw his  permission,  and  thereby  destroy  the  use  of  Kern's  saw  mill. 
His  withdrawing  that  permission  after  the  mill  was  built,  by  remov- 
ing the  stones  laid  for  the  purpose  of  turning  the  water,  if  the  jury 
beheve  these  facts,  would  be  a  fraud  and  imposition  upon  Henrj' 
Kem,  and  he  would  have  no  right  to  remove  them.  But,  if  he  had 
withdrawn  his  permission,  and  removed  the  dam  before  Henry  Kern 
was  at  the  expense  of  building  a  mill,  he  would  have  been  justifiable 


CHAP.  Ill,]  RERICK    V.    KERN.  803 

in  so  doing.  Or  if  the  permission  was  by  parol  to  enjoy  a  right  which 
could  only  pass  by  grant  for  a  consideration,  it  would  be  within  the 
statute  of  frauds  and  perjuries,  and  not  good  in  law.  But  if  the  jury 
believe  the  act  was  fraudulent  in  Henry  Rerick,  he  is  liable  to  pay 
damages  to  Henry  Kern  for  the  injury  done  him.  Of  the  amount  of 
damages  the  jury  are  the  judges.  The  second  question,  if  the  jury 
beheve  that  no  fraud  has  been  committed  by  Hemy  Rerick,  is,  did 
Rerick,  by  removing  the  dam,  divert  the  water  from  the  left  hand 
stream,  so  as  to  leave  less  water  running  in  the  left  hand  stream  than 
there  was  formerly  before  the  dam  was  erected?  This  is  a  fact  for  the 
jury,  and  if  the  jur>'  believe  that  Rerick  has  diverted  the  water  from 
the  ancient  channel,  which  he  had  no  right  to  do  to  the  injury  of 
Kern,  and  that  Kern  has  suffered  damage  thereby,  the  jury  are  to 
determine  to  what  amount,  if  any  damage  the  plaintiff  has  suffered." 

The  court  was  requested,  by  the  counsel  for  the  defendant,  to 
instruct  the  jury  in  the  following  manner:  — 

"1.  That  if  Rerick,  about  the  year  1811,  did  allow  the  plaintiff, 
as  proved  by  William  Teats,  to  place  an  obstruction  in  the  natural 
channel  of  one  branch  of  the  stream  on  Rerick's  own  land,  yet  that 
being  without  any  consideration,  and  merely  by  parol,  no  legal  right 
to  the  stream,  or  the  use  thereof,  passed  thereby  to  Kern,  but  Rerick 
had  a  right,  at  any  time,  to  remove  the  said  obstruction,  so  that  the 
water  could  flow  at  any  time  in  its  natural  channel. 

Answer.  "In  answer  to  the  first  question,  —  he  would  have  a 
right  to  remove  the  said  obstruction,  before  Kern  had  incurred  the 
expense  of  building  a  saw  mill  on  the  faith  of  Rerick's  promise,  or 
he  would  have  had  a  right,  if  the  permission  or  promise  had  been 
after  the  building  of  the  mill,  but  not  after  he  had  induced  Kern 
to  be  at  the  expense  of  building  the  mill. 

"2.  That  an  action  for  diverting  an  ancient  water-course,  does 
not  lie  for  removing  an  artificial  obstruction  from  the  natural  chan- 
nel, whereby  the  water  was  made  to  flow  as  it  used  to  do  from  time 
immemorial. 

Answer.  "That  is  the  general  principle  of  the  law;  but  to  this 
there  are  exceptions,  where,  by  so  doing,  the  partj^  commits  a  fraud, 
and  an  action  will  lie. 

"3.  That  if  the  jury  believe  the  whole  evidence  exhibited  by  the 
plaintiff  in  this  cause,  Rerick  could  legally,  in  the  fall  of  1821,  remove 
the  dam  placed  in  the  forks  of  the  stream,  by  Kern  on  Rerick's  land, 
and  for  removing  the  same  no  action  lies,  whether  Kei'n  sustained 
thereby  a  loss  or  not. 

Answer.  "If  the  jury  believe  that  there  was  no  fraud  in  Rerick's 
removing  the  dam,  in  which  case  he  would  have  a  legal  right  to  do 
it,  no  action  would  lie. 

"4.  That  if  the  jury  believe  the  water,  ever  since  the  removal  of 
the  obstruction  at  the  forks,  has  run,  and  continues  to  run,  in  its 


804  RERICK    V.    KERN.  [cHAP.  III. 

natural  channel,  as  it  used  to  do*  from  time  immemorial,  their  verdict 
should  be  for  the  defendant. 

Answer.  "If  the  jury  so  believe,  and  that  no  fraud  was  committed 
by  removing  this  obstruction,  or  dam,  then  your  verdict  should  be 
for  the  defendant." 

The  counsel  for  the  defendant  excepted  to  the  opinion  of  the 
court,  both  in  their  charge  to  the  jury,  and  in  their  answers  to  the 
several  propositions  submitted  to  them. 

Gibson,  J.  To  the  objection,  that  an  action  for  diverting  an 
ancient  water-course  is  not  supported  by  evidence  of  the  removal 
of  an  artificial  obstruction,  it  is  sufficient  to  answer,  that  in  the  case 
before  us,  the  right  depends,  not  on  the  antiquity  of  the  water-course, 
but  on  the  agreement  of  the  parties;  and  the  question  therefore  is, 
would  equity  carry  this  agreement  into  effect? 

That  such  an  agreement  may  be  proved  by  parol,  was  settled  in 
Le  Fevre  v.  Le  Fevre,  4  Serg.  &  Rawle,  241,  which,  in  this  respect, 
goes  as  far  as  the  case  before  us.  The  defence  there  was,  that  the 
right,  being  incorporeal,  and  therefore  lying  in  grant,  could  pass  only 
by  deed.  But,  as  the  agreement  was  for  a  privilege  to  lay  pipes,  it  is 
evident  that  the  right  acquired  under  it  was  no  further  incorporeal 
than  that  which  passes  by  the  grant  of  a  mine,  or  of  a  right  to  build, 
which  indisputably  vests  an  interest  in  the  soil.  A  right  of  way, 
which  has  been  thought  to  approach  it  more  nearly,  in  fact  differs 
from  it  still  further.  But  the  defence  in  this  case  is  put  on  other 
ground,  it  being  contended  that  a  mere  license  is  revocable  under  all 
circumstances,  and  at  any  time. 

But  a  license  may  become  an  agreement  on  valuable  considera- 
tion; as,  where  the  enjoyment  of  it  must  necessarily  be  preceded  by 
the  expenditure  of  money;  and  when  the  grantee  has  made  improve- 
ments or  invested  capital  in  consequence  of  it,  he  has  become  a 
purchaser  for  a  valuable  consideration.  Such  a  grant  is  a  direct 
encouragement  to  expend  money,  and  it  would  be  against  all  con- 
science to  annul  it,  as  soon  as  the  benefit  expected  from  the  expend- 
iture is  beginning  to  be  perceived.  \^'Tiy  should  not  such  an  agree- 
ment be  decreed  in  specie?  That  a  party  should  be  let  off  from  liis 
contract,  on  payment  of  a  compensation  in  damages,  is  consistent 
with  no  system  of  morals,  but  the  common  law,  which  was  in  this 
respect  originally  determined  by  political  considerations,  the  policy 
of  its  military  tenures  requiring  that  the  services  to  be  rendered  by 
the  tenant  to  his  feudal  superior,  should  not  be  prevented  by  want  of 
personal  independence.  Hence  the  judgment  of  a  court  of  law  oper- 
ates on  the  right  of  a  party,  and  the  decree  of  a  court  of  equity  on 
the  person.  But  the  reason  of  this  distinction  has  long  ceased,  and 
equity  will  execute  every  agreement  for  the  breach  of  wliich  damages 
may  be  recovered,  where  an  action  for  damages  would  be  an  inade- 
quate remedy.  How  very  inadequate  it  would  be  in  a  case  like  this, 


CHAP.  III.]  R2RICK   V.    KERN.  805 

is  perceived  by  considering  that  a  license  which  has  been  followed 
by  the  expenditure  of  ten  thousand  dollars,  as  a  necessary  qualifica- 
tion to  the  enjo>Tnent  of  it,  may  be  revoked  by  an  obstinate  man 
who  is  not  worth  as  many  cents.  But,  besides  this  risk  of  insolvency, 
the  law  in  barely  compensating  the  want  of  performance,  subjects 
the  injured  party  to  risk  from  the  ignorance  or  dishonesty  of  those 
who  are  to  estimate  the  quantum  of  the  compensation.  In  the  case 
under  coasideration,  no  objection  to  a  specific  performance  can  be 
founded  on  the  intrinsic  nature  of  the  agreement,  nor,  having  been 
partly  executed,  on  the  circumstance  of  its  resting  in  parol;  but  it  is 
to  be  considered  as  if  there  had  been  a  formal  conveyance  of  the  right, 
and  nothing  remains  but  to  determine  its  duration  and  extent. 

A  right  under  a  license,  when  not  specially  restricted,  is  commen- 
surate with  the  thing  of  which  the  license  is  an  accessory.  Permission 
to  use  water  for  a  mill,  or  anything  else  that  was  viewed  by  the 
parties  as  a  permanent  erection,  will  be  of  unlimited  duration,  and 
survive  the  erection  itself,  if  it  should  be  destroyed  or  fall  into  a  state 
of  dilapidation;  in  which  case  the  parties  might  perhaps  be  thought 
to  be  remitted  to  their  former  rights.  But  having  had  in  view  an 
unlimited  enjoyment  of  the  privilege,  the  grantee  has  purchased  by 
the  expenditure  of  money,  a  right,  indefinite  in  point  of  duration, 
which  cannot  be  forfeited  by  non-user,  unless  for  a  period  sufficient 
to  raise  the  presumption  of  a  release.  The  right  to  rebuild,  in  case  of 
destruction  or  dilapidation,  and  to  continue  the  business  on  its 
original  footing,  may  have  been  in  view  as  necessary  to  his  safety, 
and  may  have  been  an  inducement  to  the  particular  investment  in 
the  first  instance.  The  cost  of  rebuilding  a  furnace,  for  instance, 
would  be  trivial  when  weighed  with  the  loss  that  would  be  caused 
by  breaking  up  the  business  and  turning  the  capital  into  other  chan- 
nels; and  therefore  a  license  to  use  water  for  a  furnace  would  endure 
forever.  But  it  is  otherwise,  where  the  object  to  be  accomplished  is 
temporaiy.  Such  usually  is  the  object  to  be  accomplished  by  a  saw 
mill,  the  permanency  of  which  is  dependent  on  a  variety  of  circum- 
stances, such  as  an  abundance  of  timber,  on  the  failure  of  which  the 
business  necessarily  is  at  an  end.  But,  till  then,  it  constitutes  a  right 
for  the  violation  of  which  redress  may  be  had  by  action.  With  this 
qualification  it  may  safely  be  affirmed  that  expending  monc}^  or 
labour,  in  consequence  of  a  license  to  divert  a  water-course  or  use  a 
water  power  in  a  particular  way,  has  the  effect  of  turning  such  license 
into  an  agreement  that  will  be  executed  in  equity.  Here  it  was  not 
pretended  that  the  license  had  expired,  and  we  are  unable  to  discover 
an  error  in  the  opinion  of  the  court  on  the  points  that  were  pro- 
pounded. Judgment  affirmed. 

Note.  —  See,  accord,  Wynn  v.  Garland,  19  Ark.  23  (cf.  Plunkett  v. 
Meredith,  72  Ark.  3);  Miller  and  Lux  v.  Kern,  154  Cal  785;  Hiers  v. 


806  CROSDALE    V.    LANIGAN.  [cHAP.  ni. 

Mill  Haven  Co.,  113  Ga.  1002;  Jose-ph  v.  Wild,  146  Ind.  249;  Patterson 
V.  Burlington,  141  Iowa  291;  Lee  v.  McLeod,  12  Nev.  280;  Risienv. 
Brown,  73  Tex.  135;  Barry  v.  Perry,  82  Vt.  301. 


CROSDALE  V.  LANIGAN. 

129  N.Y.  604.     1892. 

Andrews,  J.  This  case  presents  a  question  of  importance  from 
the  principle  involved,  although  the  particular  interest  affected  by 
the  decision  is  not  large. 

The  action  was  brought  to  obtain  equitable  rehef  by  injunction 
to  restrain  the  defendant  from  tearing  down  a  stone  wall  erected  on 
the  defendant's  land  by  the  plaintiff,  under  an  alleged  parol  license 
from  the  defendant,  and  in  the  erection  of  which  the  plaintiff  ex- 
pended in  labor  and  materials  a  sum  exceeding  one  hundred  dollai-s. 
The  parties  are  the  owners  of  adjoining  lots  fronting  upon  a  public 
street.  The  plaintiff's  lot  is  west  of  the  lot  of  the  defendant.  The 
land  in  its  natural  state  descended  toward  the  east.  In  1886  the  plain- 
tiff graded  his  lot,  and  in  so  doing,  raised  an  embankment  several 
feet  high  along  his  eastern  line,  adjacent  to  the  lot  of  the  defendant, 
and  erected  a  house  on  his  lot.  In  1887  the  defendant  graded  his  lot 
and  excavated  the  earth  up  to  his  west  line,  adjacent  to  the  embank- 
ment on  the  plaintiff's  lot,  to  the  depth  of  four  or  more  feet,  thereby 
removing  the  natural  support  to  the  lot  of  the  plaintiff  as  it  was  in  its 
original  state.  Before  the  defendant  had  completed  his  excavation, 
the  parties  had  an  interview  and  the  question  of  the  support  of  the 
plaintiff's  embankment  arose.  The  plaintiff  claimed  that  the  defend- 
ant was  bound  to  build  a  wall  where  his  excavation  was.  The  de- 
fendant denied  his  obligation  to  do  so  and  referred  to  the  fact  that 
the  plaintiff  had  raised  his  land  several  feet  higher  than  it  was  in  its 
natural  state.  The  plaintiff  wanted  the  defendant  to  sell  him  two 
feet  of  his  land  to  build  a  wall  upon,  which  the  defendant  declined 
to  do. 

Both  parties  agree  that  the  wall  was  spoken  of.  The  plaintiff 
testified  that  nothing  was  said  between  them  as  to  what  kind  of  a 
wall  the  plaintiff  would  build,  nor  as  to  its  height,  dimensions  or 
quality.  The  defendant  on  the  other  hand  testified  that  the  plaintiff 
stated  he  would  build  a  wall  laid  up  in  mortar,  pointed  on  the  side 
facing  the  defendant's  (proposed)  house,  and  cement  it  on  the  top 
with  Portland  cement.  Some  days  after  the  interview  and  on  the 
13th  day  of  April,  1887,  the  defendant  addressed  a  letter  to  the 
plaintiff,  in  which,  after  referring  to  their  previous  interview,  he 
said:  "While  perfectly  satisfied  that  I  am  justified  in  grading  my  lot 
as  far  as  I  have  done,  and  that  if  at  any  time  your  embankment 


CHAP.  III.]  CROSDALE    V.    LANIGAN.  807 

should  topple  over  on  my  land,  that  I  could  claim  damages,  yet, 
perhaps,  I  was  a  little  hasty  and  somewhat  unreasonable  with  you 
the  other  night,  and  although  I  came  away  fully  determined  to  stand 
on  my  rights  and  keep  every  inch  of  ground  that  belonged  to  me, 
since  then  I  have  thought  the  matter  over  seriously,  put  myself  in 
your  place,  so  to  speak,  and  decided  to  give  you  two  feet  asked  for  to 
build  your  wall  on."  The  plaintiff  on  the  same  day  replied  in  writing, 
saying:  "I  will  be  glad  to  accept  your  offer  in  the  spirit  in  which  it 
was  given,  and  thus  end  a  disagreement,  etc.  I  expect  to  go  to  work 
immediately  to  build  the  wall,  and  will  go  as  far  into  my  bank  as  is 
consistent  with  its  safety.  I  will  also  modify  as  much  as  I  can  the 
grade  of  the  bank  along  the  side  and  the  front."  The  plaintiff  there- 
upon proceeded  to  build  a  wall  on  the  defendant's  land,  the  building 
of  which  occupied  four  or  five  days.  He  first  made  a  contract  with  a 
mason  to  build  a  mortared  wall,  and  lime  and  sand  were  drawn  upon 
the  place  to  be  used  therefor.  But  for  some  reason  he  changed  his 
mind,  and  he  built  the  wall  of  "flat,  ordinary  building  stone,  not 
hewn  into  shape  and  not  packed  into  regular  courses,  nor  dressed  at 
all,"  and  without  mortar  or  cement.  The  wall  was  ninety  feet  in 
length,  two  feet  or  less  in  width,  and  four  to  six  feet  high.  It  does  not 
appear  that  the  defendant  saw  the  wall  during  the  course  of  its  con- 
struction, except  that  he  was  upon  the  lot  on  one  occasion  when  the 
foundation  was  being  laid,  nor  does  it  appear  that  he  knew  that  the 
wall  was  to  be  laid  up  loose,  or  at  any  time  consented  to  the  erection 
of  such  a  wall  as  was  constructed.  Within  two  weeks  after  the  wall 
was  completed  he  notified  the  attorney  for  the  plaintiff,  who,  at  the 
request  of  his  client,  had  written  him,  demanding  a  deed  of  the  two 
feet,  that  he  had  not  agreed  to  give  a  deed,  and  that  the  wall  was  not 
built  according  to  the  understanding,  and  that  he  intended  to  tear  it 
down. 

This  case  was  tried  and  decided  upon  the  theory  that  the  plaintiff 
had  a  license  from  the  defendant  to  build  the  wall  on  his  land,  which, 
when  executed,  became  in  ecjuity  irrevocable.  It  was  not  claimed  on 
the  trial,  nor  is  it  now  claimed,  that  there  was  any  contract  on  the 
part  of  the  defendant  to  sell  the  land  occupied  by  the  wall  to  the 
plaintiff,  which,  by  reason  of  part  performance,  equity  will  enforce. 
The  claim  and  the  finding  is  that  the  license  to  enter  upon  the  de- 
fendant's land,  when  acted  upon  by  the  plaintiff,  conferred  upon  him 
a  right  in  equity,  in  the  nature  of  an  easement,  to  maintain  the  wall 
on  the  defendant's  lot.  If  this  claim  is  well  founded,  there  has  been 
created,  without  deed  and  in  violation  of  the  Statute  of  Frauds,  an 
interest  in  the  plaintiff  and  his  assigns  in  the  land  of  the  defendant, 
impairing  the  absolute  title  which  he  theretofore  enjoj^ed,  and  sub- 
jecting his  land  to  a  servitude  in  favor  of  the  adjacent  propert}'.  It  is 
quite  immaterial  in  result  that  this  interest  claimed,  if  it  exists,  is 
equitable  and  not  legal.    An  incumbrance  has  been  created  upon  the 


808  CROSDALE    V.    LANIGAN.  [CHAP.  ili. 

defendant's  lot,  and  his  ownership,  to  the  extent  of  such  interest,  has 
been  divested. 

We  are  of  opinion  that  this  judgment  is  opposed  to  the  rule  of  law 
established  in  this  state.  There  has  been  much  contrariety  of  deci- 
sion in  the  courts  of  different  states  and  jurisdictions.  But  the  courts 
in  this  state  have  upheld  with  great  steadiness  the  general  rule  that  a 
parol  license  to  do  an  act  on  the  land  of  the  licensor,  while  it  justifies 
anything  done  by  the  licensee  before  revocation,  is,  nevertheless, 
revocable  at  the  option  of  the  licensor,  and  this,  although  the  inten- 
tion was  to  confer  a  continuing  right  and  money  had  been  expended 
by  the  licensee  upon  the  faith  of  the  license.  This  is  plainly  the  rule 
of  the  statute.  It  is  also,  we  believe,  the  rule  required  by  public 
policy.  It  prevents  the  burdening  of  lands  with  restrictions  founded 
upon  oral  agreements,  easily  misunderstood.  It  gives  security  and 
certainty  to  titles,  which  are  most  important  to  be  preserved  against 
defects  and  qualifications  not  founded  upon  solemn  instruments. 
The  jurisdiction  of  courts  to  enforce  oral  contracts  for  the  sale  of 
land  is  clearly  defined  and  well  understood,  and  is  indisputable;  but 
to  change  what  commenced  in  a  license  into  an  irrevocable  right, 
on  the  ground  of  equitable  estoppel,  is  another  and  quite  different 
matter.  It  is  far  better,  we  think,  that  the  law  requiring  interests  in 
land  to  be  evidenced  by  deed,  should  be  observ^ed,  than  to  leave  it 
to  the  chancellor  to  construe  an  executed  license  as  a  gi-ant,  depend- 
ing upon  what,  in  his  view,  may  be  equity  in  the  special  case.  There 
are  several  circumstances  in  the  present  case  which  render  the  en- 
forcement of  such  a  jurisdiction  a  dangerous  precedent.  The  only 
license  claimed  is  contained  in  the  letter  of  April  thirteenth.  The 
language  is:  "I  have  decided  to  give  you  the  two  feet  you  asked  for  to 
build  your  wall  on."  How  far  the  wall  was  to  extend,  its  character, 
or  how  it  was  to  be  built,  is  not  stated.  Referring  to  the  previous 
interview  to  which  the  letter  alludes,  the  evidence  of  the  plaintiff  of 
what  was  said  at  the  interview  leaves  the  whole  matter  indefinite 
and  uncertain.  Ke  testifies  that  neither  the  description,  dimensions 
nor  character  of  the  proposed  wall  were  spoken  of.  The  testimony 
of  the  defendant  is  to  the  contrary,  but  perhaps  it  is  to  be  assumed 
that  the  trial  judge  adopted  the  testimony  of  the  plaintiff. 

Upon  the  case  made  by  the  plaintiff  upon  the  letter  and  the  prior 
conversations,  if  it  was  a  case  of  contract,  it  is  difficult  to  see  how  it 
could  be  enforced  in  equity.  The  cases  are  decisive  that  equity  will 
only  enforce  a  parol  contract  for  an  interest  in  land  when  the  con- 
tract is  definite  and  certain  in  all  its  parts.  The  extent  of  the  injury 
which  will  be  suffered  unless  equity  intervenes  is  also  an  element  to 
be  considered  when  its  extraordinary  jurisdiction  is  invoked.  Here 
the  amount  expended  by  the  plaintiff  m  reliance  upon  the  license  was 
comparatively  small.  The  most  reasonable  inference  is  that  the 
plaintiff  confided  in  the  good  faith  of  the  defendant  as  his  security 


CHAP,  m.]  CROSDALE    V.    LANIGAN.  809 

that  the  wall  would  be  pennitted  to  remain.  It  does  not  appear  that 
anything  was  said  as  to  the  time  it  should  be  maintained.  It  is 
claimed  that  the  waU  was  built  for  the  benefit  of  both  parties.  This  is 
founded  on  the  assumption  that  the  defendant's  excavation  removed 
the  natural  support  of  the  plaintiff's  land,  and  subjected  him  to  lia- 
bihty.  But  this  would  not  take  the  case  out  of  the  statute  nor  auth- 
orize the  interference  of  equity  to  enforce  the  license  as  a  grant  in 
equity.  The  same  element  of  common  benefit  is  found  in  the  case  of 
Cronkhite  v.  Cronkhite  (94  N.Y.  323). 

The  trial  judge  refused  to  find  the  facts  as  to  the  effect  which 
would  have  followed  from  the  defendant's  excavation  in  case  the 
plaintiff's  land  had  continued  in  its  natural  state.  He  tried  and 
decided  the  case  on  the  theory  that  the  license  when  executed  be- 
came irrevocable.  In  this  we  think  he  eiTed.  The  cases  of  Mumford 
v.  Whitney  (15  Wend.  380) ;  Wiseman  v.  Lucksinger  (84  N.Y.  31)  and 
Cronkhite  v.  Cronkhite  (supra)  are,  we  think,  decisive  of  this  action. 

The  judgment  should  be  reversed.    All  concur. 

Judgment  reversed. 

Note.  —  See,  accord,  Hicks  Bros.  v.  Smift  Mill  Co.,  133  Ala.  411; 
Foot  V.  New  Haven  R.R.  Co.,  23  Comi.  214;  Jackson  &  Sharp  Co.  v. 
Philadelphia  R.R.  Co.,  4  Del.  Ch.  180;  Howes  v.  Barmon,  11  Idaho 
64;  Entwhistle  v.  Henke,  211  111.  273;  Stevens  v.  Stevens,  11  Met. 
(Mass.)  251;  Nowlin  Lumber  Co.  v.  Wilson,  119  Mich.  406;  Minne- 
apolis Mill  Co.  V.  Mmneapolis  Ry.  Co.,  51  Minn.  304;  Belzoni  Oil  Co. 
V.  Yazoo  R.R.  Co.,  94  Miss.  58;  Pitzman  v.  Boyce,  111  IMo.  387  (c/. 
Cape  Girardeau  R.R.  Co.  v.  St.  Louis  Ry.  Co.,  222  ISIo.  461,  484); 
Archer  v.  Chicago  Ry.  Co.,  41  Mont.  56;  Houston  v.  Laffee,  46  N.H. 
505;  Laurence  v.  Springer,  49  N.J.  Eq.  289;  Richmond  R.R.  Co.  v. 
Durham  R.R.  Co.,  104N.C.  658;  Rodefer  v.  Pittsburg  R.R.  Co.,  72  Ohio 
272;  Foster  v.  Browning,  4  R.I.  47;  Yeager  v.  Woodruff,  17  Utah  361; 
Hathaway  v.  Yakima  Water  Co.,  14  Wash.  469;  Pifer  v.  Brown,  43 
W.Va.  412;  Thoemke  v.  Fiedler,  91  Wis.  386. 


810  STATUTE   32   HEN.    VIII,    C.    34.  [CHAP.  IV. 


CHAPTER  IV. 
COVENANTS  RUNNING  WITH   THE  LAND. 


SECTION  1. 
WHERE  THERE   IS  TENURE. 


STATUTE  32  HEN.   VIH,   c.  34. 

1540. 

Where  before  this  time  divers,  as  well  temporal  as  ecclesiastical 
and  religious  persons,  have  made  sundry  leases,  demises  and  grants 
to  divers  other  persons,  of  sundry  manors,  lordships,  ferms,  meases, 
lands,  tenements,  meadows,  pastures,  or  other  hereditaments,  for 
term  of  life  or  lives,  or  for  term  of  years,  by  writing  under  their  seal  or 
seals,  containing  certain  conditions,  covenants  and  agi'eements  to  be 
performed,  as  well  on  the  part  and  behalf  of  the  said  lessees  and  gran- 
tees, their  executors  and  assigns,  as  on  the  behalf  of  the  said 
lessors  and  grantors,  their  heirs  and  successors;  (2)  and  forasmuch  as 
by  the  common  law  of  this  realm,  no  stranger  to  any  covenant,  action 
or  condition  shall  take  any  advantage  or  benefit  of  the  same,  by 
any  means  or  ways  in  the  law,  but  only  such  as  be  parties  or  privies 
thereunto,  by  the  reason  whereof,  as  well  all  grantees  of  reversions, 
as  also  all  grantees  and  patentees  of  the  King  our  sovereign  lord,  of 
sundry  manors,  lordships,  granges,  ferms,  meases,  lands,  tenements, 
meadows,  pastures,  or  other  hereditaments  late  belonging  to  monas- 
teries, and  other  religious  and  ecclesiastical  houses  dissolved,  sup- 
pressed, renounced,  relinquished,  forfeited,  given  up,  or  by  other 
means  come  to  the  hands  and  possession  of  the  King's  majesty  since 
the  fourth  day  of  February  the  seven  and  twentieth  year  of  his  most 
noble  reign,  be  excluded  to  have  any  entry  or  action  against  the  said 
lessees  and  grantees,  their  executors  or  assigns,  which  the  lessors 
before  that  time  might  by  the  law  have  had  against  the  same  lessees 
for  the  breach  of  any  condition,  covenant  or  agreement  comprised 
in  the  indentures  of  their  said  leases,  demises  and  grants:  (3)  be  it 
therefore  enacted  by  the  King  our  sovereign  lord,  the  lords  spiritual 
and  temporal,  and  the  commons,  in  this  present  parliament  assem- 
bled, and  by  authority  of  the  same.  That  as  well  all  and  every  person 
and  persons,  and  bodies  politic,  their  heirs,  successors  and  assigns 


SECT.  I.]  STATUTE    32    HEN.    VIII,    C.    34.  811 

which  have  or  shall  have  any  gift  or  grant  of  our  said  sovereign  lord 
by  his  letters  patents  of  any  lordships,  manors,  lands,  tenements, 
rents,  parsonages,  tithes,  portions,  or  any  other  hereditaments,  or  of 
any  reversion  or  reversions  of  the  same,  which  did  belong  or  apper- 
tain to  any  of  the  said  monasteries,  and  other  religious  and  ecclesias- 
tical houses,  dissolved,  suppressed,  relinquished,  forfeited,  or  by  any 
other  means  come  to  the  King's  hands  since  the  said  fourth  day  of 
February  the  seven  and  twentieth  year  of  his  most  noble  reign,  or 
which  at  any  time  heretofore  did  belong  or  appertain  to  any  other 
person  or  persons,  and  after  came  to  the  hands  of  our  said  sovereign 
lord,  (4)  as  also  all  other  persons  being  gi-antees  or  assignees  to  or  by 
our  said  sovereign  lord  the  King,  or  to  or  by  any  other  person  or  per- 
sons than  the  King's  highness,  and  the  heirs,  executors,  successors 
and  assigns  of  every  of  them,  (5)  shall  and  may  have  and  enjoy  like 
advantages  against  the  lessees,  their  executors,  administrators  and 
assigns,  by  entry  for  non-payment  of  the  rent,  or  for  doing  of  waste 
or  other  forfeiture;  (6)  and  also  shall  and  may  have  and  enjoy  all  and 
every  such  like,  and  the  same  advantage,  benefit  and  remedies  by 
action  only,  for  not  performing  of  other  conditions,  covenants  or 
agreements  contained  and  expressed  in  the  indentures  of  their  said 
leases,  demises  or  gi-ants,  against  all  and  every  the  said  lessees  and 
farmers  and  grantees,  their  executors,  administrators  and  assigns, 
as  the  said  lessors  or  grantors  themselves,  or  their  heirs  or  successors, 
ought,  should,  or  might  have  had  and  enjoyed  at  any  timxC  or  timeL, 
(7)  in  like  manner  and  form  as  if  the  reversion  of  such  lands,  tene- 
ments or  hereditaments  had  not  come  to  the  hands  of  our  said  sov- 
ereign lord,  or  as  our  said  sovereign  lord,  his  heirs  and  successors, 
should  or  might  have  had  and  enjoyed  in  certain  cases,  by  virtue 
of  the  act  made  at  the  first  session  of  this  present  parliament,  if  no 
such  grant  by  letters  patent  had  been  made  by  his  Highness. 

II.  Moreover  be  it  enacted  by  authority  aforesaid,  that  all 
farmers,  lessees  and  grantees  of  lordships,  manors,  lands,  tene- 
ments, rents,  parsonages,  tithes,  portions,  or  any  other  heredita- 
ments for  term  of  years,  life  or  Uves,  their  executors,  administrators 
and  assigns,  shall  and  may  have  like  action,  advantage  and  remedy 
against  all  and  every  person  and  persons  and  bodies  politic,  their 
heirs,  successors  and  assigns,  whicli  have  or  shall  have  any  gift  or 
grant  of  the  King  our  sovereign  lord,  or  of  any  other  person  or  per- 
sons, of  the  reversion  of  the  same  manors,  lands,  tenements,  and 
other  hereditaments  so  letten,  or  any  parcel  thereof,  for  any  condi- 
tion, covenant  or  agreement  contained  or  expressed  in  the  indentures 
of  their  lease  and  leases,  as  the  same  lessees,  or  any  of  them  might 
and  should  have  had  against  the  said  lessors  and  grantors,  their  heirs 
and  successors;  (2)  all  benefits  and  advantages  of  recoveries  in  value 
by  reason  of  any  warranty  in  deed  or  in  law  by  voucher  or  otherwise 
only  excepted. 


812  spencer's  case.  [chap.  iv. 

III.  Provided  always,  That  this  act,  nor  any  thing  or  things 
therein  contained,  shall  extend  to  hinder  or  charge  any  person  or 
persons  for  the  breach  of  any  covenant  or  condition  comprised  in 
any  such  writing,  as  is  aforesaid,  but  for  such  covenants  and  condi- 
tions as  shall  be  broken  or  not  performed,  after  the  first  day  of 
September  next  coming,  and  not  before;  any  thing  before  in  this  act 
contained  to  the  contrary  thereof  notwithstanding. 

Note.  —  In  1  Wms.  Saund.  299,  the  learned  editors  said : "  Perhaps 
the  best  way  of  reconciling  the  cases  is,  by  considering  that  at  com- 
mon law  covenants  ran  with  the  land,  but  not  with  the  reversion. 
Therefore  the  assignee  of  the  lessee  was  held  to  be  liable  in  covenant, 
and  to  be  entitled  to  bring  covenant,  but  the  assignee  of  the  lessor 
was  not."  And  see  Bally  v.  Wells,  3  Wils.  25,  29. 


SPENCER'S  CASE. 

5  Co.  16  a.     1583. 

Spencer  and  his  wife  brought  an  action  of  covenant  against  Clark, 
assignee  to  J.  assignee  to  S.  and  the  case  was  such:  Spencer  and  his 
wife  by  deed  indented  demised  a  house  and  certain  land  (in  the 
right  of  the  wife)  to  S.  for  term  of  21  years,  by  which  indenture  S. 
covenanted  for  him,  his  executors,  and  administrators,  with  the 
plaintiff,  that  he,  his  executors,  administrators,  or  assigns,  would 
build  a  brick  wall  upon  part  of  the  land  demised,  etc.  S.  assigned  over 
his  term  to  J.  and  J.  to  the  defendant;  and  for  not  making  of  the  brick 
wall  the  plaintiff  brought  the  action  of  covenant  against  the  defendant  as 
assignee :  and  after  many  arguments  at  the  bar,  the  case  was  excel- 
lently argued  and  debated  by  the  justices  at  the  bench:  and  in  this 
case  these  points  were  unanimously  resolved  by  Sir  Christopher 
Wray,  Chief  Justice,  Sir  Thomas  Gawdy,  and  the  whole  court.  And 
many  differences  taken  and  agreed  concerning  express  covenants, 
and  covenants  in  law,  and  which  of  them  run  with  the  land,  and 
which  of  them  are  collateral,  and  do  not  go  with  the  land,  and  where 
the  assignee  shall  be  bound  without  naming  him,  and  where  not;  and 
where  he  shall  not  be  bound  although  he  be  expressly  named,  and 
where  not. 

1.  When  the  covenant  extends  to  a  thing  in  esse,  parcel  of  the 
demise,  the  thing  to  be  done  by  force  of  the  covenant  is  quodammodo 
annexed  and  appurtenant  to  the  thing  demised,  and  shall  go  with  the 
land,  and  shall  bind  the  assignee  although  he  be  not  bound  by  express 
words:  but  when  the  covenant  extends  to  a  thing  which  is  not  in 
being  at  the  time  of  the  demise  made,  it  cannot  be  appurtenant  or 
annexed  to  the  thing  which  hath  no  being:  as  if  the  lessee  covenants 


SECT.  I.]  BLAKE    V.    SANDERSON.  813 

to  repair  the  houses  demised  to  him  during  the  term,  that  is  parcel 
of  the  contract,  and  extends  to  the  support  of  the  thing  demised,  and 
therefore  is  quodam  modo  annexed  appurtenant  to  houses,  and  shall 
bind  the  assignee  although  he  be  not  bound  expressly  by  the  cove- 
nant :  but  in  the  case  at  bar,  the  covenant  concerns  a  thing  which  was 
not  in  esse  at  the  time  of  the  demise  made,  but  to  be  newly  built 
after,  and  therefore  shall  bind  the  covenantor,  his  executors,  or 
administrators,  and  not  the  assignee,  for  the  law  will  not  annex  the 
covenant  to  a  thing  which  hath  no  being. 

2.  It  was  resolved  that  in  this  case,  if  the  lessee  had  covenanted 
for  him  and  his  assigns,  that  they  would  make  a  new  wall  upon  some 
part  of  the  thing  demised,  that  forasmuch  as  it  is  to  be  done  upon 
the  land  demised,  that  it  should  bind  the  assignee;  for  although  the 
covenant  doth  extend  to  a  thing  to  be  newly  made,  yet  it  is  to  be 
made  upon  the  thing  demised,  and  the  assignee  is  to  take  the  benefit 
of  it,  and  therefore  shall  bind  the  assignee  by  express  words.  So  on 
the  other  side,  if  a  warranty  be  made  to  one,  his  heirs  and  assigns, 
by  express  words,  the  assignee  shall  take  benefit  of  it,  and  shall  have 
a  Warrantia  chartoe,  F.  N.  B.  135.  &  9  E.  2.  Garr'  de  Charters  30.  36 
E.  3.  Garr.  1.  4  H.  8.  Dyer  1.  But  although  the  covenant  be  for  him 
and  his  assigns,  yet  if  the  thing  to  be  done  be  merely  collateral  to  the 
land,  and  doth  not  touch  or  concern  the  thing  demised  in  any  sort, 
there  the  assignee  shall  not  be  charged.  As  if  the  lessee  covenants  for 
him  and  his  assigns  to  build  a  house  upon  the  land  of  the  lessor  which 
is  no  parcel  of  the  demise,  or  to  pay  any  collateral  sum  to  the  lessor, 
or  to  a  stranger,  it  shall  not  bind  the  assignee,  because  it  is  merely 
collateral,  and  in  no  manner  touches  or  concerns  the  thing  that  was 
demised,  or  that  is  assigned  over;  and  therefore  in  such  case  the 
assignee  of  the  thing  demised  cannot  be  charged  with  it,  no  more 
than  any  other  stranger. 


BLAKE  V.  SANDERSON. 

1  Gray  (Mass.)  332.     1854. 

At  the  trial  in  the  court  of  common  pleas,  before  Bishop,  J.,  the 
plaintiffs  gave  in  evidence  a  lease  of  the  premises  from  themselves 
to  Henry  Hildreth  for  four  years  and  six  months  from  the  first  of 
March,  1848,  at  a  yearly  rent  of  three  hundred  and  twenty-five  dol- 
lars, payable  in  quarterly  payments.  By  the  terms  of  this  lease,  the 
lessee  promised  not  to  "lease  nor  underlet,  nor  permit  any  other 
person  or  persons  to  occupy  or  improve  the  premises,  nor  make,  or 
suffer  to  be  made,  any  alteration  thereon,  but  with  the  approbation 
of  the  lessors  thereto  in  writing  having  been  first  obtained."  On  the 
back  of  this  lease  was  the  following  assignment :  — 


814  BLAKE    V.    SANDERSON.  [cHAP.  IV. 

"Know  all  men  by  these  presents,  that  I,  the  within  named  Henry 
Hildreth,  for  value  received,  do  hereby  assign,  transfer  and  set  over 
to  Albert  Sanderson  the  within  lease,  and  all  my  right  under  the 
same,  he  to  pay  the  rent  and  taxes  from  this  date.  Witness  my  hand 
and  seal  this  first  day  of  March  a.d.  1849. 

''In  presence  of  Edward  Blake,        Henry  Hildreth,  (Seal.) 
assenting  to  the  assignment." 

The  plaintiffs  also  introduced  evidence,  tending  to  show  that 
the  lease  and  assignment  were  duly  executed  by  the  parties  purport- 
ing to  have  executed  them;  that  Hildreth  occupied  the  premises 
under  the  lease,  paying  the  rent  until  the  1st  of  March,  1849;  and 
that  from  that  date  until  the  30th  of  November,  1850,  the  defendant 
occupied,  and  paid  the  rent  to  the  plaintiff  Blake,  who  made  out  the 
bills  to  the  defendant,  and  signed  receipts  for  the  rent,  in  this  form: 
"Edward  Blake,  for  self  and  Richard  Robins,  Executors,  etc." 

The  defendant  gave  evidence  tending  to  show  that  he  vacated  the 
premises  before  the  30th  of  November,  1850,  and  on  that  day  gave 
the  plaintiffs  notice  in  writing,  that  he  had  vacated  the  premises, 
and  that  the  same  were  at  their  disposal. 

Thomas,  J.  This  action  of  contract  is  brought  to  recover  of  the 
defendant,  as  assignee  of  a  lease,  the  rent  of  a  shop  on  Cambridge 
Street  from  December  1st,  1850,  to  March  1st,  1851.  The  defendant 
says  that  there  was  no  valid  assignment  of  the  lease,  because  by  the 
terms  of  the  lease  no  vaKd  assignment  could  be  made  without  the 
assent  in  writing  of  the  lessors;  and  that  assent  was  given  only  by 
Edward  Blake,  one  of  the  lessors.  The  defendant  entered  under  the 
assignment,  and  occupied  the  premises,  and  is  clearly  estopped  to 
deny  its  validity.  It  was  a  condition  for  the  benefit  of  the  lessors, 
which  they  might  waive,  and  did  waive  by  recognizing  the  assignee 
as  their  tenant  and  receiving  rent  of  him  as  such.  By  such  assign- 
ment and  acceptance  of  the  lease,  the  defendant  is  bound  to  the  per- 
formance of  its  conditions;  and  his  liabiUty  for  rent  is  to  be  governed 
by  the  terms  of  the  lease,  and  not  restricted  to  actual  occupation. 

Note.  —  A  covenant  that  there  shall  be  a  lien,  to  secure  the  rent, 
on  all  improvements  added  to  the  premises,  binds  the  assignee. 
Webster  v.  Nichols,  104  111.  160. 

A  covenant  to  pay  taxes  binds  the  assignee.  Salisbury  v.  Shirley, 
66  Cal.  223. 

A  covenant  to  pay  "all  assessments  for  which  the  premises  shall 
be  liable"  binds  the  assignee,  and  he  is  bound  to  pay  an  assessment 
subsequently  imposed  for  opening  a  street,  although  it  was  not 
authorized  by  any  law  existing  at  the  time  the  lease  was  executed. 
Post  V.  Kearney,  2  N.Y.  394. 


SECT.  I.j  WILLIAMS   V.    EARLE.  815 

COCKSON  V,  COCK. 

Cro.  Jac.  125.     1606. 

Covenant  against  the  defendant  as  the  assignee  of  Dalton;  for 
that  upon  an  mdenture  of  demise  Dalton  covenanted  for  himself, 
his  executors,  and  administrators,  to  leave  fifteen  acres  every  j'ear  for 
pasture  absque  cullura;  and  that  he  granted  his  estate  to  the  defend- 
ant, and  that  the  defendant  non  reliquit  quindecim  acras  ad  pasturam, 
but  such  a  day  and  year  ploughed  up  all.  And  upon  this  count  it  was 
demurred.  Because  the  assignee  not  being  named,  it  is  not  any  cove- 
nant which  shall  bind  the  assignee,  for  it  is  collateral.  But  all  the 
COURT  held,  that  this  covenant  is  to  be  performed  by  the  assignee, 
although  he  be  not  named ;  because  it  is  for  the  benefit  of  the  estate, 
according  to  the  nature  of  the  soil;  but  to  perform  a  collateral  cove- 
nant, as  to  build  de  novo,  or  such  hke,  shall  not  bind  him,  unless 
named.  Wherefore  it  was  adjudged  for  the  plaintiff. 

Note.  —  A  covenant  to  reiDair  binds  the  assignee.  Demaresi  v. 
Willard,  8  Cow.  (N.Y.)  205. 

A  covenant  to  reside  on  the  premises  binds  the  assignee.  Tatem  v. 
Chaplin,  2  H.  Bl.  133. 

In  Wertheirner  v.  Hosmer,  83  Mich.  56,  the  court  said  (p.  62) :  "The 
words  contained  in  the  lease,  'to  be  used  for  the  sale  of  teas,  coffees, 
spices,  and  similar  goods,'  amount  to  an  express  covenant  not  to  be 
used  for  any  other  business.  Covenants  are  not  infrequently  inserted 
in  leases  that  the  lessee  shall  not  cany  on  particular  trades  upon  the 
premises.  This  precaution  often  becomes  necessary,  not  only  for  the 
protection  of  the  premises  from  injuries  which  might  otherwise  be 
done  to  them,  but  to  prevent  their  respectability  being  lessened,  and 
their  good-will  thereby  diminished.  Covenants  of  this  kind,  as  they 
affect  the  mode  of  occupation  and  enjoyment,  run  with  the  land,  and 
the  assignee,  though  not  named,  will  be  liable  to  an  action  for  dam- 
ages, and  may  be  restrained  by  injunction." 


WILLIAMS  V.  EARLE. 

L.  R.  3  Q.B.  739.     18G8. 

Blackburn,  J.  This  is  an  action  by  the  lessor  against  the  assignee 
of  a  lease  for  breach  of  covenants  in  the  lease,  and  the  rule  has  been 
well  established  ever  since  Spencer's  Case,  5  Rep.  16  a;  1  Sm.  L.  C. 
6th  ed.  45,  that,  when  covenants  are  contained  in  a  lease  (at  all 
events  if,  as  in  the  present  case,  the  covenants  are  on  behalf  of  the 
lessee  and  his  assigns),  and  the  covenants  touch  or  concern  the  land, 
although  the  original  covenants  arc  made  by  the  original  lessee  with 


816  WILLIAMS    V.    EARLE.  [CHAP.  IV, 

tne  lessor,  yet  they  run  with  the  land,  and  there  being  privity  of 
estate  between  the  assignee  and  the  lessor,  the  lessor  may  sue  the 
assignee  for  breach  of  any  of  them.  But  this  is  only  in  the  case  of  a 
covenant  which  "touches  or  concerns"  the  land. 

Now  the  first  and  chief  point  to  be  determined  here  is,  there  being 
a  covenant  in  the  original  lease  by  which  the  lessees,  on  behalf  of 
themselves  and  their  assigns,  covenant  with  the  lessor  that  neither 
they  nor  their  assigns  will  assign  the  lease  without  the  hcence  of  the 
mortgagor  and  mortgagee,  and  the  defendant  the  assignee  having  as- 
signed without  their  licence,  whetherthat  is  a  covenant  which  touches 
or  concerns  the  land,  and  therefore  runs  with  it  and  binds  defendant. 

I  have  been  unable  to  perceive,  after  listening  attentively  to  the 
argument  of  the  counsel  for  the  defendant,  any  reason  why  this  cov- 
enant should  not  be  considered  a  covenant  touching  and  concern- 
ing the  land.  It  is  an  express  covenant  as  to  who  shall  have  and 
occupy  the  land,  and  it  is  inserted  with  a  view  that  the  landlord  shall 
not  be  deprived  of  a  voice  as  to  who  shall  be  substituted  for  the 
original  lessee  in  the  possession  of  the  landlord's  premises.  It  is  cer- 
tainly very  material  as  touching  the  interest  of  the  landlord  and 
tenant,  and  touches  and  concerns  the  thing  demised  quite  as  directly 
as  the  many  covenants  that  have  been  held  to  do  so.  Such  as  a 
covenant  to  renew  a  lease,  which  has  been  held  to  run  with  the  land 
in  more  than  one  case  cited  in  the  judgment  of  the  court  in  Roe  v. 
Hayley,  12  East,  at  p.  4G9;  or  a  covenant  to  reside  in  the  demised 
premises,  which  was  held  in  Tatem  v.  Chaplin,  2  H.  Bl.  133,  to  bind 
the  assignee  though  not  named.  Again,  in  Bally  v.  Wells,  3  Wils.  25, 
33,  a  covenant  not  to  let  any  of  the  farmers  take  the  tithes  demised 
without  the  consent  of  the  lessor  was  held  to  run  with  the  tithes  and 
bind  the  assignee,  assigns  being  mentioned  in  the  covenant.  And  the 
expression  made  use  of  by  the  court  at  the  end  of  the  judgment, 
which  Mr.  Jones  relied  upon  as  shewing  that  a  covenant  to  assign 
without  a  licence  could  not  run  with  the  land,  seems  to  have  no  such 
meaning,  but  the  contrary.  The  expression  is,  "a  covenant  not  to 
assign  generally  must  be  personal  and  collateral,  and  can  only  bind 
the  lessor  himself,  there  never  can  be  an  assignee;"  but  the  court 
adds,  "whereas  the  present  lease  grants  to  executors,  administrators, 
and  assigns  ;''  and  what  they  seem  to  have  meant  is,  that  when  the 
lessee  covenants,  not  that  he  will  not  assign  without  licence,  but  that 
he  will  not  assign  at  all,  then  the  covenant  of  course  does  not  run 
with  the  land,  because  the  covenant  is  gone  whether  the  assigimient 
be  with  a  licence  or  without.  But  when  there  is  a  covenant  that  the 
lessee  and  his  assigns  will  not  assign  without  licence,  it  is  different, 
and  the  covenant  may  run  with  the  land  toties  quoties.  It  seems  to 
me,  therefore,  both  upon  principle  and  authority,  that  the  present 
covenant  not  to  assign  without  licence  from  the  landlord  from  time 
to  time,  does  run  with  the  land,  and  consequently  the  defendant,  the 
assignee,  is  Hable  for  the  breach. 


SECT.  I.]  VERNON    V.    SMITH.  817 

But  though  there  is  a  covenant  bindmg  on  the  defendant  not  to 
assign,  the  assignment  is  nevertheless  operative,  and  the  estate 
passed  from  the  defendant  to  Banks,  and  the  breaches  of  covenant 
which  have  occurred  since  are  not  breaches  for  which  the  defendant 
can  be  liable  in  the  present  form  of  action;  anything  done  by  the  de- 
fendant on  the  premises  since  then  he  may  be  liable  for  in  an  action 
on  the  case:  but  the  remedy  on  the  covenants  must  be  against  the 
new  tenant  Banks.  But  the  plaintiff  is  entitled  to  recover  indirectly 
in  the  present  action  by  way  of  damages  for  the  breach  of  the  cove- 
nant not  to  assign.  For  inasmuch  as,  if  the  covenant  not  to  assign 
had  not  been  broken,  the  assignee  would  have  remained  liable  to  the 
plaintiff  to  fulfil  all  these  covenants,  the  breaches  of  whicli  are  men- 
tioned in  the  first  count,  and  there  would  have  been,  if  he  remained 
solvent,  a  complete  and  sufficient  remedy  in  his  Uability,  the  defend- 
ant having  assigned  over  to  a  person,  who  no  doubt  is  selected  be- 
cause he  has  nothing  to  lose  and  so  loses  nothing  by  incurring  the 
liability  under  the  covenants,  there  has  been  damage  sustained  by 
the  plaintiff  by  the  defendant's  breach  of  covenant  not  to  assign,  by 
reason  of  the  plaintiff  only  having  the  Uability  of  this  inferior  person, 
instead  of  the  liabihty  of  the  defendant,  for  the  breaches  of  the  other 
covenants;  and  the  arbitrator,  in  assessing  the  damages  on  the  second 
count,  must  put  the  plaintiff,  as  far  as  possible,  in  the  same  position, 
so  far  as  money  will  do  it,  as  if  the  covenant  had  not  been  broken. 
The  arbitrator  will  take  into  consideration  how  much  the  worse  the 
plaintiff  will  be  both  in  respect  of  breaches  of  covenant  already 
incurred,  as  well  as  in  respect  of  breaches  which  may  in  future  be 
incurred.  The  arbitrator  must  see  what  sum  of  money  will  put  the 
plaintiff  in  the  same  position  as  he  would  have  been  in  if  the  covenant 
not  to  assign  the  lease  had  not  been  broken,  and  the  plaintiff  had 
retained  the  liability  of  the  defendant  instead  of  an  inferior  liability. 
I  agree  with  My.  Jones  that  this  will  be  a  matter  of  some  difficulty, 
and  the  parties  would  do  well  to  agree  that  the  lease  shall  be  sur- 
rendered to  the  plaintiff,  and  then  the  measure  of  damages  will  be 
by  how  much  worse  off  the  plaintiff  is  than  he  would  have  been  had 
the  defendant  continued  bound  as  lessee  all  the  time,  as  he  would 
have  been  had  he  not  broken  his  covenant  not  to  assign. 


VERNON  V.  SMITH. 

5  B.  &  Aid.  1.     1821. 

Covenant  by  the  assignee  of  the  lessor  against  the  lessee.  The 
declaration  stated,  that  one  J.  Hance,  the  lessor,  before  the  time  of 
making  the  lease,  was  lawfully  possessed  of  the  tenements  and  prem- 
ises for  the  residue  and  remainder  of  a  certain  term  of  years,  whereof 


818  VERNON    V.    SMITH.  [CHAP.  IV. 

seven  years  were  then  unexpired;  which  tenements  and  premises, 
with  the  appurtenances,  then  were  and  thence  hitherto  have  been 
and  still  are  situate  within  the  weekly  bills  of  mortality,  mentioned 
in  the  14  G.  3,  c.  78;  and  being  so  possessed  thereof,  he,  the  said  J. 
Hance,  by  indenture,  demised  and  leased  to  the  defendant  the  tene- 
ments and  premises,  with  the  appurtenances,  habendum,  for  seven 
years,  at  a  certain  rent  therein  mentioned ;  covenant  by  the  defend- 
ant that  he  should  and  would  forthwith,  at  his  own  expense,  and 
from  time  to  time  during  the  term,  insure  in  some  of  the  public  offices 
in  London  or  Westminster,  for  the  purpose  of  insuring  houses  from 
casualties  by  fire,  the  messuage,  dwelling-house,  coach-house,  stable, 
and  premises  thereby  demised  or  thereafter  to  be  erected  and  built 
thereon,  tc  the  amount  of  800L,  in  the  joint  names  of  the  defendant, 
his  executors,  administrators,  or  assigns,  and  of  Robert  Stone,  the 
ground  landlord  of  the  premises,  his  heirs  or  assigns ;  and  should  and 
would,  at  the  request  of  Hance,  or  of  the  ground  landlord,  their  heirs 
or  assigns,  produce  the  policy  and  receipts  for  such  insurance.  The 
declaration  set  out  the  proviso  in  the  lease  for  re-entry,  on  breach  of 
any  of  the  covenants.  It  then  stated  the  defendant's  entry  into  the 
premises,  and  that,  after  the  making  of  the  indenture,  the  term  was 
assigned  by  Hance  to  the  plaintiff.  The  breach  assigned  was,  that 
the  defendant  did  not  insure.  The  second  count  stated,  that,  before 
the  making  of  the  demise  to  the  defendant,  in  the  first  count  men- 
tioned, and  also  before  and  at  the  time  of  the  making  of  the  demise 
thereinafter  mentioned,  Robert  Stone  was  seised  in  fee  of  and  in  the 
said  demised  tenements,  and  by  a  certain  indenture,  demised  the 
same  to  J.  Hance,  habendum,,  for  eighty-five  years  and  six  months. 
And  that  J.  Hance,  by  that  indenture,  covenanted  to  insure  the 
premises  from  fire,  to  the  amount  of  three  fourths  of  the  value 
thereof,  in  the  joint  names  of  himself  and  Stone,  with  a  proviso  for 
re-entry,  in  case  of  non-performance  of  the  covenants.  It  then  stated, 
that  three  fourths  of  the  value  of  the  premises  amounted  to  800^, 
and  that,  by  reason  of  the  said  demised  premises  remaining  unin- 
sured. Stone  brought  an  action  of  ejectment  for  the  forfeiture,  and 
the  plaintiff  was  forced  to  pay  the  costs  to  him,  amounting  to  500Z., 
and  also  to  sustain  his  own  costs,  amounting  to  lOOOL  Breach,  that 
the  defendant  had  not  kept  the  covenant  made  by  him,  as  stated  in 
the  first  count.  To  this  declaration,  there  was  a  general  demurrer 
and  joinder. 

Abbott,  C.J.  It  is  not  necessaiy,  on  the  present  occasion,  to  give 
any  opinion  on  the  effect  of  a  covenant  to  insure  premises  situate 
without  the  limits  mentioned  in  the  14  Geo.  3,  c.  78.  These  premises 
lying  within  those  limits,  the  effect  of  that  statute  is,  to  enable  the 
landlord,  by  application  to  the  governors  or  directors  of  the  insurance 
office,  to  have  the  sum  insured  laid  out  in  rebuilding  the  premises. 
Now  a  covenant  to  lay  out  a  given  sum  of  money  in  rebuilding  or 


SECT.  I.]  VERNON    V.    SMITH.  819 

repairing  the  premises,  in  case  of  damage  by  fire,  would  clearly  be  a 
covenant  running  with  the  land,  that  is,  such  a  covenant  as  would  be 
binding  on  the  assignee  of  the  lessee,  and  which  the  assignee  of  the 
lessor  might  enforce.  Here  the  defendant  does  not  covenant  ex- 
pressly in  those  words,  but  only  that  he  will  provide  the  means  of 
having  800/.  ready  to  be  laid  out  in  rebuilding  the  premises  in  case  of 
fire.  But,  connecting  that  covenant  with  the  act  of  parliament,  the 
landlord  has  a  right  to  say,  that  the  money,  when  recovered,  shall  be 
so  laid  out.  It  is,  therefore,  as  compulsory  on  the  tenant  to  have  the 
money  laid  out  in  rebuilding,  and  as  beneficial  for  the  landlord  as 
if  the  tenant  had  expressly  covenanted  that  he  would  lay  out  the 
money  he  received  in  respect  of  the  policy  upon  the  premises.  For 
these  reasons,  I  think  that  this  is  a  covenant  running  with  the  land, 
for  the  breach  of  which  the  assignee  of  the  lessor  may  sue;  and,  con- 
sequently, there  must  be  judgment  for  the  plaintiff. 

HoLROYD,  J.  I  am  of  the  same  opinion.  If  the  covenant  to  insure 
to  the  amount  of  800L,  in  case  of  fire,  could  be  considered  as  a  cove- 
nant to  pay  a  collateral  sum  to  the  lessor,  the  present  action  could 
not  be  supported;  but,  taking  that  covenant,  together  with  the  Stat. 
14  G.  3,  c.  78,  s.  83,  I  think  that  the  sum  insured  is  not  to  be  con- 
sidered as  a  collateral  sum,  but  as  a  sum  which,  by  operation  of  law, 
must  be  laid  out  upon  the  premises.  It  is,  therefore,  a  covenant  to  do 
a  matter  which  concerns  the  land,  and  falls  within  the  rule  laid  down 
in  Spencer's  Case,  and  by  Lord  Chief  Justice  Wilmot  in  Bally  v. 
Wells.  He  there  lays  it  down  thus:  "Covenants  in  leases,  extending 
to  a  thing  'in  esse,'  parcel  of  the  demise,  run  with  the  land,  and  bind 
the  assignee,  though  he  be  not  named,  as  to  repair,  etc.  And  if  they 
relate  to  a  thing  not 'in  esse,' but  yet  the  thing  to  be  done  is  upon 
the  land  demised,  as  to  build  a  new  house  or  wall,  the  assignees,  if 
named,  are  bound  by  the  covenants;  but  if  they  in  no  manner  touch 
or  concern  the  thing  demised,  as  to  build  a  house  on  other  land,  or  to 
pay  a  collateral  sum  to  the  lessor,  the  assignee,  though  named,  is  not 
bound  by  such  covenants;  or  if  the  lease  is  of  sheep  or  other  personal 
goods,  the  assignee,  though  named,  is  not  bound  by  any  covenant 
concerning  them.  The  reasons  why  the  assignees,  though  named,  are 
not  bound  in  the  two  last  cases,  are  not  the  same.  In  the  first  case,  it 
is  because  the  thing  covenanted  to  be  done  has  not  the  least  reference 
to  the  thing  demised;  it  is  a  substantive,  independent  agreement, 
not  'quodam  modo,'  but  'nullo  modo,'  annexed  or  appurtenant  to 
the  thing  leased.  In  the  case  of  the  mere  personalty,  the  covenant 
doth  concern  and  touch  the  thing  demised;  for  it  is  to  restore  it  or 
the  value  at  the  end  of  the  term ;  but  it  doth  not  bind  the  assignee, 
because  there  is  no  privity,  as  there  is  in  the  case  of  a  realty  between 
the  lessor  and  lessee  and  his  assigns,  in  respect  of  the  reversion;  it  is 
mei-ely  collateral  in  one  case;  in  the  other  it  is  not  collateral,  but 
they  are  total  strangers  to  one  another,  without  any  line  or  thread  to 


820  CONGLETON    V.    PATTISON.  [CHAP.  IV. 

unite  and  tie  them  together;  and  to  constitute  that  privity  which 
must  subsist  between  debtor  and  creditor  to  support  an  action." 
And  in  page  346,  after  citing  several  cases,  from  which  he  deduces 
the  prmciple  laid  down,  he  says,  "All  these  cases  clearly  prove,  that 
'  inherent '  covenants,  and  such  as  tend  to  the  support  and  mainte- 
nance of  the  thing  demised,  where  assigns  are  express^  mentioned, 
follow  the  reversion  and  the  lease,  let  them  go  where  they  will." 
In  the  present  covenant,  assigns  are  exj3ressly  included;  and,  inas- 
much as  the  performance  of  the  covenant  would,  in  the  event  of 
the  premises  being  destroyed  or  injured  by  fire,  tend  to  the  support 
and  maintenance  of  the  thing  demised,  I  am  of  opinion,  that  it  falls 
within  the  rule  laid  down  by  Lord  C.J.  Wilmot,  and,  consequently, 
that  there  must  be  judgment  for  the  plaintiff. 

Note.  —  See,  accord,  Thomas'  Admrs.  v.  Vonkapff's  Heirs,  6  Gill. 
&  J.  (Md.)  372,  381;  Masury  v.  Southivorth,  9  Ohio  St.  340. 


CONGLETON  v.  PATTISON. 

10  East  129.     1808.     • 

The  plaintiffs  declared  in  covenant  upon  an  indenture,  made  the 
23d  November,  1752,  whereby  they  demised  to  John  Claj-ton  a  piece 
of  ground  in  Congleton,  called  the  Byflatt,  and  a  certam  slip  of  land, 
thi-ough  which  a  water-course  was  intended  to  be  made,  with  liberty 
for  making  and  repairing  the  same,  and  with  liberty  for  Clayton,  his 
executors,  administrators,  or  assigns,  to  erect  in  the  Byflatt  a  silk 
mill,  etc.,  habendum  the  said  piece  of  ground  and  premises,  etc.,  to 
Clayton,  his  executors,  administrators,  and  assigns,  for  300  years 
from  the  date  of  the  indenture;  yielding  and  paying  as  therein 
mentioned.  And  Clayton  covenanted  for  himself,  his  executors,  ad- 
ministrators, and  assigns,  with  the  corporation,  that  he,  his  execu- 
tors, etc.,  would  at  all  times  during  the  term,  before  any  persons 
should  be  received  as  servants,  workmen,  or  apprentices  in  such  silk 
mill,  give  notice  of  their  names  to  the  town-clerk  of  the  borough  for 
the  time  being;  and  if  he  should  immediately  give  satisfactory  infor- 
mation to  Clayton,  his  executors,  etc.,  or  to  the  then  owner  or  occu- 
pier of  the  silk  mill,  that  any  of  the  persons  in  such  notice  were 
legally  settled  in  any  other  parish  or  township,  and  not  in  Congleton, 
then  they  should  not  be  received  to  work  in  the  business  of  such  silk 
mill,  before  a  certificate  of  the  settlement  of  such  person  under  the 
Stat.  8  &  9  W.  3,  c.  30,  should  be  given  to  Congleton.  The  declaration 
then  stated  the  entrj^  of  J.  Clayton,  and  the  building  of  the  silk  mill; 
and  that  on  the  1st  of  January,  1790,  all  the  estate  and  interest,  etc., 
of  J.  Clayton  in  the  premises  duly  came  to  and  vested  in  the  defend- 


SECT.  I.]  CONGLETON    V.    PATTISON.  821 

ants  by  assignment,  by  virtue  of  which  they  entered  and  were  pos- 
sessed, etc. :  and  then  assigned  as  a  breach,  that  after  the  defendants 
became  so  possessed,  and  while  they  were  working  the  silk  mill,  and 
during  the  continuance  of  the  teiTa,  they  received  divers  persons  as 
servants,  workmen,  and  apprentices  to  work  in  the  said  mill,  without 
giving  the  previous  notice  before  mentioned  to  the  town-clerk  of 
Congleton,  and  that  the  persons  so  received  worked  in  the  said  mill 
without  any  such  notice,  and  that  they  had  not  pre\dously  gained 
any  settlement  in  Congleton;  by  reason  of  which  the  township  of 
Congleton  had  become  liable  to  relieve  them  and  their  families,  and 
had  expended  a  large  sum  in  the  same,  and  continued  liable  to  the 
burden,  etc. ;  and  that  the  plaintiffs  had  also  incurred  great  expense 
in  the  premises,  and  their  estates  and  property  in  the  township  had 
been  lessened  in  value. 

The  defendants,  after  craving  oyer  of  the  indenture,  by  which  it 
appeai-ed  further,  that  the  term  was  granted  by  the  coi-jDoration  in 
consideration  of  801.  paid  and  of  a  nominal  yearly  rent;  demurred 
generally  to  the  declaration. 

Lord  Ellenborough,  C.J.  This  is  a  covenant  in  which  the  as- 
signee is  specifically  named ;  and  though  it  were  for  a  thing  not  in  esse 
at  the  time,  yet  being  specifically  named,  it  would  bind  him,  if  it 
affected  the  nature,  quality,  or  value  of  the  thing  demised,  inde- 
pendently of  collateral  circumstances;  or  if  it  affected  the  mode  of 
enjojdng  it.  But  this  covenant  does  not  affect  the  thing  demised,  in 
the  one  way  or  the  other.  It  may  indeed  collaterally  affect  the  lessors 
as  to  other  lands  they  may  have  in  possession  in  the  same  parish, 
by  increasing  the  poor's  rate  upon  them;  but  it  cannot  affect  them 
even  collaterally  in  respect  of  the  demised  premises  during  the 
term.  How  then  can  it  affect  the  nature,  quality,  or  value  of  the 
thing  demised?  Can  it  make  any  difference  to  the  mills,  whether 
they  are  worked  by  persons  of  one  parish  or  another :  or  can  it  affect 
the  value  of  the  thing  at  the  end  of  the  term,  independently  of  col- 
lateral circumstances?  The  settling  an  additional  number  of  persons 
in  this  place  may  indeed,  by  means  of  the  increased  population,  bring 
an  increased  burden  at  the  end  of  the  term  on  those  who  are  to  pay 
the  rates:  but  that  increase  of  population  may  also  be  an  increased 
benefit  of  the  land-owners,  as  it  has  happened  within  our  own  experi- 
ence in  many  parts  of  this  kingdom,  the  seats  of  manufactui-es,  where 
the  value  of  land  has,  in  consequence,  risen  in  a  great  propoi'tion.  But 
the  covenant  in  question  does  not  affect  the  thing  demised  immedi- 
ately, but  only,  if  at  all,  in  respect  of  collateral  circumstances;  that  is 
through  the  medium  of  an  increased  population,  and  the  increased 
expense  of  providing  for  them  on  the  one  hand,  with  the  increased 
value  of  the  lands  to  beset  against  it  on  the  other  hand.  How  then 
does  it  affect  the  mode  of  occupation?  The  carrying  on  of  a  particular 
trade  on  the  premises  may  be  said  to  do  that;  but  where  the  work  to 


822  CONGLETON    V.    PATTISON.  [CHAP.  IV. 

be  done  is  at  all  events  the  same,  whether  it  be  done  by  workmen 
from  one  parish  or  another  cannot  affect  the  mode  of  occupation. 
The  covenant,  therefore,  not  directly  affecting  the  nature,  quality, 
or  value  of  the  thing  demised,  nor  the  mode  of  occupying  it,  is  a  col- 
lateral covenant,  which  will  not  bind  the  assignee  of  the  term,  though 
named;  and  this  is  a  question  with  the  assignee,  and  not  wdth  the 
original  lessee  who  entered  into  the  covenant.  In  the  case  of  Bally 
V.  Wells  the  covenant  might  affect  the  thing  demised ;  for  if  the  lessee 
of  the  tithe  suffered  any  of  the  farmers  of  the  parish  to  take  their 
own  tithes,  such  union  of  the  land  with  the  tithe  might  lay  a  foun- 
dation for  claiming  a  modus,  which  might  affect  the  future  value  of 
the  tithes,  and  would  immediately  affect  the  occupation.  But  we 
cannot  say  that  this  covenant  does  either;  and  therefore  it  does 
not  run  with  the  land  so  as  to  bind  the  assignees. 

Le  Blanc,  J.  This  covenant  does  not  appear  to  me  to  run  with 
the  land,  or  bind  the  assignee.  The  question  does  not  depend  upon 
the  length  of  the  lease,  or  whether  the  injury  to  the  lessor  is  to  take 
effect  in  more  or  less  time,  but  whether  the  thing  covenanted  to  be 
done  or  not  to  be  done  immediately  affects  the  land  itself  or  the  mode 
of  occupying  it.  But  here  it  is  only  by  collateral  circumstances  that 
this  can  make  the  land  more  or  less  valuable.  It  can  no  otherwise 
affect  the  land  than  as  by  introducing  a  greater  number  of  persons 
into  the  parish  who  were  not  before  settled  there,  and  by  enabling 
them  to  gain  settlements,  it  may  by  possibility  hereafter  create  a 
greater  number  of  poor,  who  must  be  maintained  by  the  occupiers, 
and  so  affect  them :  but  this  cannot  be  said  to  afTect  the  land  itself, 
or  the  mode  of  cultivating  or  occupjang  it.  It  is  no  more  than  if  the 
lessee  had  covenanted  that  he  would  not  employ  such  persons  in  any 
other  house  within  the  parish  during  his  occupation  of  the  premises 
in  question.  The  work  done  is  the  same,  whether  by  one  set  of  serv- 
ants or  another ;  the  nature  of  the  property  is  not  varied  by  it :  but  to 
employ  persons  in  the  mill  who  were  not  before  settled  inhabitants 
of  Congleton  may  create  a  speculation  whether  it  will  affect  the 
interests  of  the  occupiers  there.  The  ground,  however,  on  which  I 
distinguish  this  case  from  others  is  that  this  is  not  a  covenant  which 
affects  the  land  itself  or  the  mode  of  its  occupation, 
i  Bayley,  J.  I  agree  that  it  is  not  material  to  consider  how  soon 
the  act  done,  which  was  covenanted  not  to  be  done,  may  affect  the 
land;  but  in  order  to  bind  the  assignee  the  covenant  must  either 
affect  the  land  itself  during  the  term,  such  as  those  which  regard  the 
mode  of  occupation;  or  it  must  be  such  as  per  se,  and  not  merely  from 
collateral  circumstances,  affect  the  value  of  the  land  at  the  end  of 
the  term.  Covenants  to  restrain  the  exercise  of  particular  trades  in 
houses  fall  within  the  first  class:  they  affect  the  mode  in  which  the 
property  is  to  be  enjoyed  during  the  term.  The  case  in  Wilson  may 
rank  under  the  second  class:  for  if  the  lessee  or  a  stranger  were  in  the 


SECT.  I.l  LEPPLA   V.    MACKEY.  823 

actual  occupation  of  the  tithes  during  the  term,  the  evidence  of  the 
lessor's  right  to  them  would  be  continued,  and  therefore  the  estate 
of  the  reversioner  would  be  better  at  the  end  of  the  term.  But  here 
the  state  of  the  premises  will  be  the  same  at  the  end  of  the  term, 
whether  the  parish  be  more  or  less  burdened  with  poor.  I  agree  that 
the  value  of  the  reversion  will  not  be  so  much  if  the  poor's  rate  on 
the  land  be  increased ;  but  that  burden  would  be  increased  by  a  col- 
lateral circumstance;  and  where  the  value  of  the  reversion  is  only 
altered  by  collateral  circumstances,  the  covenant  will  not  bind  the 
assignee  of  the  land.  As  in  the  instance  put  of  a  covenant  not  to 
employ  foreigners  in  any  other  mill  in  the  parish:  and  yet  the  value 
of  the  reversion  would  be  affected  in  the  same  manner  in  the  one 
instance  as  in  the  other.  Suppose  a  covenant  by  the  lessee  to  make 
a  communication  by  water  from  the  demised  premises  through  other 
persons'  lands  to  another  place,  to  facilitate  the  access  to  a  market, 
the  value  of  the  reversion  would  be  materially  affected  by  the  per- 
formance or  non-performance  of  such  a  covenant;  but  it  could  not 
bind  the  assignee,  because  all  the  cases  shew  that  the  assignee  is  not 
bound  unless  the  thing  to  be  done  is  upon  the  land  demised.  There- 
fore, as  this  covenant  does  not  affect  the  occupation  of  the  land,  nor 
alter  the  actual  state  of  the  property  from  what  it  would  otherwise 
be  at  the  end  of  the  term,  it  does  not  bind  the  assignee. 

Judgment  for  the  defendant. 


LEPPLA  V.  MACKEY. 

31  Minn.  75.     1883. 

The  plaintiff  brought  this  action  in  the  district  court  for  Hennepin 
County,  to  compel  the  execution  by  defendants  of  a  lease  of  certain 
land,  in  accordance  with  the  terms  of  a  prior  lease  mentioned  in  the 
opinion.  The  action  was  tried  by  Shaw,  J.,  without  a  jury,  and  judg- 
ment ordered  and  entered  for  defendants,  from  which  the  plaintiff 
appeals. 

Dickinson,  J.  Harmon  leased  land,  of  which  he  was  the  owner, 
to  Slosson,  for  the  term  of  three  years,  "with  the  right,"  as  expressed 
in  the  lease,  "to  the  said  second  party  to  a  renewal  of  this  lease  at 
the  same  yearly  rental,  and  subject  to  the  same  conditions  as  herein, 
for  the  further  term  of  two  years,  unless  the  party  of  the  first  part 
wishes  the  piece  of  land  for  building  purposes."  During  the  tcnn  of 
the  lease,  the  lessee  assigned  his  interest  to  the  plaintiff.  The  lessor 
conveyed  the  land  to  the  defendant  Mackey,  who,  desiring  to  use  the 
land  for  building  purposes,  declined  to  renew  the  lease.  The  case 
only  calls  for  a  determination  of  the  legal  rights  and  obligations  of 
the  parties  respecting  a  renewal  of  the  lease. 


824  LEPPLA    V.    MACKEY.  [cHAP.  IV. 

Although  the  covenant  for  a  renewal  of  the  lease  was  made  in 
terms  merely  in  favor  of  the  lessee,  it  is  well  settled  that  such  a  cov- 
enant runs  with  the  land  to  one  who,  by  assignment,  comes  to  stand 
in  the  place  of  the  covenantee.  And,  since  the  covenant  runs  with 
the  land,  it  is  obligatory,  not  only  upon  the  covenantor,  but  upon  his 
grantee.  The  legal  effect  of  the  covenant  is  hence  clearly  the  same 
as  if  it  read,  "with  the  right  to  the  said  second  party  or  his  assigns 
to  a  renewal  of  this  lease /ram  the  party  of  the  first  part  or  his  assigns, 
.  .  .  unless  the  party  of  the  first  part  wishes  the  piece  of  land  for 
building  pui-poses."  Neither  by  the  assignment  to  the  plaintiff, 
nor  by  the  grant  to  the  defendant  INIackey,  was  the  covenant  for 
renewal  discharged  of  the  condition  which  was  a  part  of  it. 

The  only  question  in  the  case  is  as  to  the  construction  to  be  placed 
upon  the  terms  of  the  condition.  We  seek  to  arrive  at  the  intention 
of  the  contracting  parties  from  a  consideration  of  the  terms  in  which 
their  agreement  is  expressed.  They  are  to  be  deemed  to  have  under- 
stood that  this  covenant  would  be  binding  upon,  and  its  performance 
might  be  enforced  against,  not  only  the  then  owner  of  the  land,  the 
lessor,  but  as  well  his  heirs  or  grantees.  In  the  light  of  this  fact,  we 
cannot  reasonably  construe  the  contract  either  as  expressing  the  in- 
tention that  the  right  to  a  renewal  of  the  lease,  in  the  event  of  a  sale 
of  the  property  by  the  lessor,  or  in  the  event  of  his  death,  should  be 
still  dependent  upon  his  election  to  use  the  land,  nor  that,  by  such 
death  or  alienation,  the  substantial  terms  of  the  covenant  should  be 
so  changed  as  to  be  no  longer  subject  to  any  condition,  and  that  the 
succeeding  owner  of  the  property  should  have  no  option,  but  must 
grant  a  renewal  of  the  lease,  although  he  might  wish  to  build  upon 
the  land.  We  construe  the  clause  as  a  condition  inseparable  from 
the  covenant  of  which  it  is  an  integral  part,  and  that  it  has  the  effect 
to  reserve  to  the  grantee  of  the  reversion  the  same  right  of  election 
that  his  grantor,  the  plaintiff's  lessor,  had. 

Judgment  affirmed. 

Note.  —  The  assignee  of  the  reversion  is  bound  by  a  covenant  to 
renew  the  lease.  Leiter  v.  Pike,  127  111.  287,  326;  Richardson  v. 
Sydenham,  2  Vern.  447;  Roe  v.  Hayley,  12  East  463,  468. 

And  an  assignee  of  the  lessee  may  enforce  such  a  covenant. 
Robinson  v.  Perry,  21  Ga.  183;  Blackmorc  v.  Boardman,  28  Mo.  420. 
Piggot  V.  Mason,  1  Paige  (N.Y.)  411. 

In  Postal  Tel.  Co.  v.  Western  Union  Tel.  Co.,  155  111.  335,  the  land- 
lord leased  offices  in  a  building  to  a  telegraph  company,  and  cove- 
nanted not  to  lease  any  other  offices  in  the  building  for  the  same 
purpose.  The  court  held  that  the  assignee  of  the  revei-sioner  could 
itself  use  other  portions  of  the  building  for  a  telegraph  office. 


SECT.  I.]  MINSHULL    V.    OAKES.  825 

MINSHULL  V.  OAKES. 

2  H.  &  N.  793.     1858. 

Pollock,  C.B.  Two  entirely  distinct  questions  arose  in  this  case. 
The  declaration  was  on  a  demise  to  the  lessee,  his  executors,  admuiis- 
trators  and  assigns,  m  consideration  of  the  rents  and  covenants  on 
the  part  and  behalf  of  the  lessee  and  his  assigns  to  be  paid,  done, 
and  performed,  of  a  messuage  and  lands,  with  liberty  to  the  lessee, 
his  executors,  administrators  and  assigns,  to  make  any  erections  or 
buildings.  The  lessee  covenanted  for  himself,  his  heirs,  executors 
and  administrators  (not  saymg  assigns) ,  that  he,  his  heirs,  executors, 
administrators  or  assigns,  would  pay  rent;  and  that  he,  his  executors 
or  administrators,  would  repair  the  messuage  and  farm,  outhouses, 
barns,  stable,  and  all  other  erections  and  buildings  which  should  or 
might  be  thereafter  erected,  and  all  the  gates,  etc.,  and  the  same 
being  so  repaired,  he,  the  lessee,  his  executors,  administrators,  and 
assigns,  at  the  end  of  the  term  would  yield  up.  There  was  a  breach 
alleged,  in  non-repair  and  not  yieldmg  up  in  repair.  The  third  plea 
was  pleaded  to  a  part  of  this,  \dz.,  to  so  much  as  complained  m  respect 
of  a  water  corn  mill,  cottages,  and  other  buildings  erected  and  built 
during  the  term,  and  shewed  that  they  were  buildings  erected  during 
the  terni,  and  not  erected  in  place  of  others  pre\dously  existing.  It 
was  contended  that  this  plea  was  good  on  the  authority  of  the  first 
resolution  in  Spencer's  Case,  5  Rep.  16  a,  the  lessee  not  having 
covenanted  for  his  assigns. 

The  state  of  the  authorities  in  question  seems  as  follows:  The 
proposition,  that  a  covenant  which  would  run  with  the  land  if  the 
assignee  were  named,  does  not  where  he  is  not  named  and  the  thing 
was  not  in  esse  at  the  time  of  the  making  of  the  covenant,  is  laid 
down  in  Spencer's  Case.  The  same  is  to  be  found  in  Com^^ls'  Digest, 
Govt.  (C.)  3,  citing  Spencer's  Case  and  Jones,  223,  which,  however, 
does  not  support  the  doctrine.  It  is  not  found  in  Rolle.  It  is  in 
Viner's  Abridgement,  "Covenant"  (L.),  where,  however.  Moor,  159, 
is  cited  as  estabhshing  the  same,  when  in  truth  it  established  the 
contrary.  It  is  negatively  sanctioned  by  the  silence  of  the  author  and 
editors  of  Smith's  Leading  Cases,  and  it  is  cited  in  DoughUj  v.  Bow- 
man, 11  Q.  B.  444,  where,  however,  with  submission,  it  was  inapplica- 
ble. There  the  question  was  if  an  assignee  of  the  reversion  was  bound, 
which  depends  on  different  considerations:  1  Wms.  Saunders,  241  d. 
In  Sheppard's  Touchstone,  180,  it  is  thus  put,  "  If  the  lessee  covenant 
for  himself,  or  for  himself,  his  executors  or  administrators  only,  to 
build  a  new  house  upon  the  land,  the  assignee  is  not  bound;"  the 
editor  adds,  because  he  is  not  named.  In  page  179,  Spencer's  Case  is 
cited,  but  the  case  put  is  of  a  new  house.  A  similar  remark  ap])lies  to 
Cockson  V.  Cock,  Cro.  Jac.  125,  where  a  covenant  to  build  de  novo  is 


826  MINSHULL    V.    OAKES.  [CHAP.  IV. 

called  collateral.  But  it  may  be  not  unreasonably  said  that  to  build 
a  new  house  does  not  "extend  to  the  support  of  the  thing  demised." 
Indeed  Lord  Coke  thought  it  waste:  Co.  Litt.  53  a.  On  the  other 
hand,  ]\Ioor,  p.  159,  pi.  300  (which  is  evidently  Spencer's  Case, 
though  the  date  is  later),  gives  the  decision  the  other  way.  The 
explanation  may  be,  that  Lord  Coke  is  reporting  a  variety  of  argu- 
ments and  opinions  expressed,  while  Moor  gives  the  ultimate  deci- 
sion. Smith  V.  Arnold,  3  Salk.  4,  is  directly  contrary:  and  in  Bally  v. 
Wells,  3  Wils.  25,  the  contrary  is  stated.  No  reason  is  given  for  the 
alleged  difference  between  where  the  assignee  is  and  is  not  named; 
on  the  contrary,  the  reason  given  for  binding  in  any  case  an  assignee 
not  named,  viz.,  that  he  takes  the  benefit  and  burthen,  seems  equally 
to  apply  to  every  such  case. 

No  doubt,  as  Mr.  Atherton  said,  if  the  law  were  clearly  laid  down 
without  contradiction  (as  he  contends  it  is),  it  ought  to  be  abided  by, 
though  no  reason  could  be  given  for  it.  It  would  not  be  enough,  to 
justify  a  departure  from  it,  that  it  was  without  a  known  reason;  it 
ought  to  be  followed,  at  least,  unless  contrary  and  repugnant  to  other 
rules  and  principles.  But  in  deciding  which  of  two  confhcting  sets 
of  authorities  is  coiTect,  it  is  not  irrelevant  to  look  at  the  reason  of  the 
thing.  No  doubt  the  resolution  in  Spencer's  Case  has  been  repeatedly 
cited,  or  the  same  thing  said  as  is  said  there;  but  that  resolution  is 
the  foundation  of  the  opinion;  it  never  appears  to  have  been  acted 
oh;  on  the  contrary.  Moor,  159,  and  Smith  v.  Arnold  are  decisions  the 
other  way.  In  the  present  case  we  think  it  sufficient  to  say,  that  as 
the  covenant  is  not  a  covenant  absolutely  to  do  a  new  thing,  but  to 
do  something  conditionally,  viz.,  if  there  are  new  buildings,  to  repair 
them ;  as  when  built  they  will  be  part  of  the  thing  demised,  and  conse- 
quently the  covenant  extends  to  its  support,  and  as  the  covenant  clearly 
binds  the  assignee  to  repair  things  in  esse  at  the  time  of  the  lease,  so 
does  it  also  those  in  posse,  and  consequently  the  assignee  is  bound. 
There  is  onlj^  one  covenant  to  repair;  if  the  assignee  is  included 
as  to  part,  why  not  as  to  all?  On  these  grounds  we  think  the  third 
•plea  bad. 

Note.  —  There  have  been  some  decisions  in  this  country  m  sup- 
port of  the  first  resolution  in  Spencer's  Case,  in  cases  arising  between 
landlord  and  tenant.  See  Hansen  v.  Meyer,  81  111.  321;  Thompson  v. 
Rose,  8  Cowen  (N.Y.)  266;  Bream  v.  Dickerson,  2  Humph.  (Tenn.) 
126. 

And  there  have  been  numerous  dicta  in  its  support.  See  Emersoyi 
V.  Simpson,  43  N.H.  475,  477;  Brewer  v.  Marshall,  18  N.J.  Eq.  337, 
341;  Hartung  v.  Witte,  59  Wis.  285,  295.  See  also  Baiky  v.  Richard- 
son, 66  Cal.  416,  420;  Kellogg  v.  Robinson,  6  Vt.  276,  280. 

As  will  be  seen  from  the  cases  in  Section  2,  infra,  the  courts  are 
cautious  about  allowing  a  covenant  to  run  with  the  land,  in  cases 


SECT.  I.]  HOLFORD  V.    HATCH.  827 

where  there  is  no  tenure.  The  fact  that  assigns  were  not  named  may- 
lead  the  court  to  conclude  that  it  was  the  intention  of  the  parties 
that  the  covenant  should  be  personal  to  the  covenantor.  See  Dawson 
V.  Western  Maryland  R.R.  Co.,  107  Md.  70;  Maryland  R.R.  Co.  v. 
Silver,  110  Md.  510;  Newhurg  Petroleum  Co.  v.  Weare,  44  Ohio  St. 
604,  613;  Brown  v.  Southern  Pacific  Co.,  36  Or.  128;  Gulf  Ry.  Co.  v. 
Smith,  72  Tex.  122. 

On  the  other  hand,  it  was  held  in  Harris  v.  Coidbourti^s  Assignee, 
3  Harr.  (Del.)  338,  that  a  covenant  to  pull  down  an  old  chimney  and 
erect  a  new  one  bound  the  assignee  of  the  lessee,  though  not  named; 
similarly,  in  Bradford  Oil  Co.  v.  Blair,  113  Pa.  83,  of  a  covenant  to 
explore  for  oil,  which  involved  boring  new  wells;  and  in  Frederick  v. 
Callahan,  40  Iowa  311,  of  a  covenant  by  the  reversioner  to  pay  for 
improvements  made  during  the  term. 

In  Dorsey  v.  St.  Louis  R.R.  Co.,  58  111.  65,  the  railroad  had, 
when  the  covenant  was  made,  no  authority  to  assign  its  property, 
and  the  court  held  that  in  such  case  the  omission  of  the  word  ''as- 
signs" from  its  covenant  did  not  relieve  its  assignee  from  liability. 


HOLFORD   V.  HATCH. 

1  Doug.  183.     1779. 

This  was  an  action  of  covenant,  for  rent  in  arrear,  brought  against 
the  defendant  as  assignee  of  one  Saunders.  The  declaration  stated 
(in  the  common  form),  that  the  plamtiff  demised  to  Saunders  for 
seven  years,  by  virtue  whereof  he  entered  and  was  possessed,  and 
that  afterwards,  all  the  estate,  right,  title,  and  interest,  of  Saunders,  in 
the  premises,  came  to  the  defendant,  hy  assigmnent  thereof,  by  virtue 
whereof  he  entered  and  was  possessed,  and  that,  after  the  assign- 
ment, rent  had  become  due,  which  the  defendant  had  not  paid.  The 
defendant  pleaded,  that  all  the  estate,  right,  title,  and  interest,  of 
Saunders  in  the  premises,  did  not  come  to  him  by  assignment  thereof 
in  manner  and  forai  as  the  plaintiff  had  alleged. 

On  the  trial,  it  appeared,  that  the  defendant  was  in  possession  of 
the  premises  during  the  time  when  the  rent  in  arrear  became  due, 
but  that,  by  the  deed  under  which  he  held,  they  were  convcj^ed  to 
him,  by  Saunders,  for  a  day,  or  some  days  less  than  the  original 
tei*m,  and  that  he  had  actually  surrendered  them  before  the  action 
was  brought.  Some  receipts  also  were  produced  for  rent  which  had 
been  paid  by  the  defendant  to  the  plaintiff,  and  which  run  thus: 
"Received  of  Saunders  by  the  hands  of  Hatch." 

Upon  this  evidence,  it  was  contended,  at  the  trial,  which  cnme  on 
before  Lord  Mansfield,  at  the  Sittings  for  Middlesex,  in  last 
Hilary  Term:  1.  That,  in  point  of  law,  a  person  holding  of  the  first 


828  WALL    V.    HINDS.  [cHAP.  IV. 

lessee,  by  an  under-lease,  like  the  present,  is  not  liable  to  be  sued  by 
the  original  lessor,  on  the  covenant  for  rent  contained  in  the  original 
lease;  2.  That  the  fact  put  in  issue  on  the  record,  viz.,  that  all  the 
estate,  etc.,  of  Saunders  came  to  the  defendant,  was  not  proved. 

A  verdict  was  found  for  the  plaintiff,  but  Lord  IMansfield  saved 
the  pomts  made  by  the  defendant's  counsel,  for  the  opinion  of  the 
court. 

Lord  Mansfield.  This  is  an  action  of  covenant  by  a  lessor  against 
an  under-lessee,  and  the  single  question  is,  whether  the  action  can  be 
maintained  against  him,  as  being,  substantially,  an  assignee.  For 
some  time,  we  had  gi-eat  doubts;  we  have  bestowed  a  great  deal  of 
consideration  on  the  subject,  and  looked  fully  into  the  books,  and 
it  is  clearly  settled  (and  is  agreeable  to  the  text  of  Littleton),  that 
the  action  cannot  be  maintained,  unless  against  an  assignee  of  the 
whole  term. 

The  rule  made  absolute. 


CONGHAM  V.  KING. 

Cro.  Car.  221.     1631. 

Covenant  against  the  defendant,  as  assignee  of  an  assignee,  for 
not  repairing  of  an  house  let  inter  alia. 

[It  was  argued]  that  the  defendant  is  but  assignee  of  parcel  of  the 
things  demised.  Sed  non  allocatur;  for  this  covenant  is  dividable,  and 
follows  the  land,  with  which  the  defendant,  as  assignee,  is  charge- 
able by  the  common  law,  or  by  the  statute  of  32  Hen.  8,  c.  37. 
Whereupon  it  was  adjudged  for  the  plaintiff. 

Note.  —  The  assignee  of  the  reversion  in  part  of  the  leased 
premises  is  bound,  as  to  that  part,  by  a  covenant  to  renew  the  lease. 
Ldter  v.  Pike,  127  111.  287. 


WALL  V.  HINDS. 

4  Gray  (Mass.)  256.     1855. 

The  plaintiff  leased  premises  to  the  defendant,  and  the  defendant 
covenanted  to  pay  the  rent  reserved.  The  defendant  assigned  the 
temi,  and  the  plaintiff  accepted  rent  from  the  assignee.  Thereafter 
rent  fell  in  arrear,  and  the  plaintiff  brought  this  action  of  covenant 
against  the  defendant. 

BiGELow,  J.  The  assignment  by  the  lessee  of  his  entire  interest 
in  the  estate  under  the  lease,  and  the  acceptance  of  rent  by  the 


SECT.  I.]  NEAL    V.    JEFFERSON.  829 

plaintiffs  from  the  assignees,  do  not  constitute  a  valid  defence  to  the 
present  suit.  It  is  the  well-settled  rule  of  law  that  in  such  case  the 
lessor  cannot  maintain  an  action  of  debt  for  rent  against  the  lessee ; 
but  that  an  action  will  lie  against  him  on  the  covenant  for  the  pay- 
ment of  rent.  The  reason  of  the  rule  is,  that,  although  by  the  assign- 
ment the  privity  of  estate  between  lessor  and  lessee  is  terminated, 
there  still  remains  the  privity  of  contract  between  them,  created  by 
the  lease,  which  is  not  affected  by  the  assignment.  The  lessee  still 
continues  hable  on  his  covenant,  by  virtue  of  the  privity  of  contract. 
Bachelour  v.  Gage,  Cro.  Car.  188;  Barnard  v.  Godscall,  Cro.  Jac.  309; 
Thursby  v.  Plant,  1  Saund.  240;  Auriol  v.  Mills,  4  T.  R.  94. 


NEAL  V.  JEFFERSON. 

212  Mass.  517.     1912. 

Contract  for  the  alleged  breach  of  a  covenant  of  renewal  in  a 
lease.  Writ  dated  October  31,  1910. 

In  the  Superior  Court  the  case  was  tried  before  Dubuque,  J.  The 
defendant  was  the  executrix  of  the  will  of  Joseph  Jefferson,  late  of 
Bourne.  The  lease  was  dated  May  22,  1909,  and  was  for  the  term  of 
one  year  from  November  1,  1909,  at  the  annual  rent  of  SIOOO.  The 
lessor  was  described  as  "the  estate  of  Joseph  Jefferson."  The  cove- 
nant sued  upon  was  as  follows:  "And  the  said  lessor  further  cove- 
nants that  it  will,  on  or  before  the  first  day  of  June,  a.d.  1910,  at  the 
request  of  the  said  lessee,  execute  to  and  with  him  a  new  lease  of  the 
premises  herein  leased,  for  the  further  term  of  two  years,  to  com- 
mence from  the  exj^iration  of  the  term  hereby  granted,  at  the  same 
yearly  rent,  payable  in  like  mamier  and  with  and  subject  to  the  like 
covenants,  agreements  and  pro^'isos,  except  the  covenant  for  further 
renewal,  as  are  herein  contained." 

The  leased  premises  consisted  of  the  Hotel  Jefferson  in  West  Palm 
Beach  in  Florida  and  an  adjoining  cottage  with  the  furnishings. 

On  March  10,  1910,  the  defendant,  as  executrix,  sold  the  leased 
premises  to  two  brothers  named  Anthony  and  delivered  to  them  the 
duplicate  original  of  the  lease  to  the  plaintiff.  The  Anthonys  refused 
to  renew  the  lease,  except  at  an  increased  rental. 

The  defendant  requested  the  judge  to  give  the  following  instruc- 
tion: "6.  After  the  transfer  of  the  Hotel  Jefferson  and  Huffstetter 
Cottage  to  the  Anthonys,  with  notice  of  the  lease  to  the  plaintiff  and 
the  covenant  for  renewal  contained  therein,  Sarah  A.  Jefferson  was 
not  liable  for  any  failure  of  the  Anthonys  to  respect  the  plaintiff's 
right  to  a  renewal  lease."  The  judge  refused  to  give  this  instruction. 

Sheldon,  J.  It  is  not  material  to  determine  whether  the  plaintiff 
could  have  enforced  specifically  against  the  defendant's  grantees  her 


830  MASON   V.    SMITH.  [cHAP.  IV. 

agreement  to  give  him  a  new  lease.  However  this  might  be,  the 
defendant  was  personally  hable  upon  her  covenant,  and  her  convey- 
ance of  the  leased  premises  did  not  reHeve  her  from  that  liabihty, 
Riley  v.  Hale,  158  Mass.  240;  Jones  v.  Parker,  163  Mass.  564,  568; 
Caryenterw.  Pocasset  Manuf.  Co.,  180  Mass.  130, 133.  See  Manning  v. 
Fitch,  138  Mass.  273;  Tufts  v.  Atlantic  Telegraph  Co.,  151  Mass.  269. 
The  cases  of  Hickeij  v.  Railway  Co.,  51  Ohio  St.  40,  and  Sexauer  v. 
Wilson,  136  Iowa,  357,  rehed  on  by  the  defendant,  turned  on  what 
was  regarded  in  those  cases  as  the  intention  of  the  parties.  We  need 
not  consider  whether,  upon  similar  facts,  we  should  follow  those 
decisions. 


MASON  V.  SMITH. 

131  Mass.  510.     1881. 

Contract  for  money  paid.  Trial  in  the  Superior  Court,  without 
a  jury,  before  Dewey,  J.,  who  allowed  a  bill  of  exceptions,  in  sub- 
stance as  follows :  — 

On  December  20,  1869,  Nancy  J.  Fuller  leased  to  the  plaintiff  a 
parcel  of  land  in  Boston,  for  the  term  of  fifteen  years  from  January  1, 
1870,  by  an  instrument  under  seal  and  duly  recorded,  the  lessee 
covenanting  to  pay  rent  and  taxes.  On  April  8,  1870,  the  plaintiff 
assigned  the  lease  to  the  defendant  by  an  instrument  under  seal, 
written  on  the  back  of  the  lease,  and  signed  by  him,  as  follows: 
"Boston,  April  8,  1870.  In  consideration  of  one  dollar  and  other 
good  and  valuable  considerations  paid  to  me  by  T.  H.  Smith,  the 
receipt  whereof  is  hereby  acknowledged,  I  do  hereby  assign  to  said 
Smith  all  my  right,  title  and  interest  to  the  within  written  instru- 
ment." This  assignment  was  recorded  on  the  same  day.  On  ^larch 
12,  1873,  the  defendant,  by  a  similar  indorsement  on  the  lease, 
assigned  the  lease  to  John  Carney.  The  plaintiff  had  no  knowledge 
of  this  assignment,  and  it  was  not  recorded  until  June  14,  1877. 

On  April  10,  1876,  the  heir  at  law  of  Nancy  J.  Fuller  brought  an 
action  against  the  plaintiff,  upon  the  covenant  in  the  lease  for  the 
taxes  assessed  upon  the  demised  premises  for  the  years  1872,  1873, 
1874  and  1875.  The  plaintiff  requested  the  defendant  to  defend  the 
action;  but,  as  he  did  not  do  so,  the  plaintiff  defended  it,  and  judg- 
ment was  recovered  against  him  m  the  sum  of  S392  damages,  and 
$24.32  costs. 

The  plaintiff  asked  the  judge  to  rule  that  the  assignment  of  the 
defendant  to  Carney  was  not  operative  against  the  plaintiff  in  this 
action,  he  having  no  notice  or  knowledge  of  the  same,  and  it  not 
being  recorded  until  June  14,  1877;  and  that  the  defendant  was 
liable  for  all  the  taxes  which  the  plaintiff  had  paid. 


SECT.  I.]  MASON   V.   SMITH.  831 

The  judge  refused  so  to  rule;  and  ruled  that  the  defendant  was 
only  Kable  for  the  tax  for  the  yaax  1872;  and  ordered  judgment 
accordingly.  The  plaintiff  alleged  exceptions. 

Endicott,  J.  It  is  clear  that  the  plamtiff  was  hable  to  the  lessor 
upon  the  covenants  of  the  lease  for  the  payment  of  taxes  for  the 
3^ears  1872,  1873,  1874,  1875;  although  he  had  assigned  all  his  right, 
title  and  interest  in  the  lease  to  the  defendant  in  1870,  which  assign- 
ment was  under  seal  and  duly  acknowledged  and  recorded.  The 
defendant,  as  assignee,  would  also  be  hable  to  the  lessor  for  the  taxes 
accruing  during  his  term,  by  virtue  of  the  privity  of  estate  created 
by  the  assignment.  In  such  a  case,  the  Hability  of  the  original  lessee 
does  not  depend  upon  privity  of  estate,  for  he  has  parted  with  his 
whole  interest,  but  upon  privity  of  contract,  and  continues  during 
the  whole  term;  while  the  Habihty  of  the  assignee  continues  only 
during  the  term  he  holds  the  legal  title  to  the  leasehold  estate  under 
his  assignment.  When  the  privity  of  estate  thus  ceases,  his  hability 
to  the  lessor  ceases.  Farrington  v.  Kimhall,  126  Mass.  313,  and  cases 
cited.  See  Hoidand  v.  Coffin,  9  Pick.  52. 

The  plaintiff,  being  thus  liable,  was  sued  by  the  legal  representa- 
tive of  the  lessor  for  these  unpaid  taxes,  and  judgment  having  been 
rendered  against  him  for  the  whole  amount,  he  paid  the  same. 

That  a  lessee  can  recover  from  his  assignee,  and  also  from  a  second 
assignee,  the  taxes  accruing  during  then*  terms  respectively,  and 
which  the  lessee  has  been  obhged  through  their  default  to  pay  to  the 
lessor,  is  well  settled.  Patten  v.  Deshon,  1  Gray,  325;  Burnett  v. 
Lijnch,  5  B.  &  C.  589;  Monk  v.  Garrett,  L.  R.  5  Ex.  132;  s.  c.  7  Ex. 
101;  Farrington  v.  Kimball,  ubi  supra.  The  question  presented  in 
this  case  is  whether  the  plaintiff  is  entitled  to  recover  from  the 
defendant,  not  only  the  taxes  for  1872,  when  the  defendant  was  actu- 
ally in  possession,  but  also  the  taxes  for  the  following  years,  when 
Carney  was  in  possession,  to  whom  the  defendant  had  transferred 
the  lease  in  1873  by  an  assignment,  not  recorded  until  1877.  The 
lease  was  for  the  term  of  fifteen  years  from  January  1,  1870.     • 

The  assignee  of  a  lessee  takes  the  whole  estate  of  the  lessee  in  the 
premises,  subject  to  the  performance  on  his  part  of  the  covenants 
running  with  the  land,  under  the  terms  of  the  lease.  By  accepting 
and  entering  under  the  assignment,  the  law  impUes  a  promise  to 
perform  the  duties  thus  imposed  upon  him.  If  through  his  neglect  or 
refusal  to  perform  them,  the  lessee  is  obliged  to  pay  rent,  taxes  or 
other  sums  of  money  to  the  lessor  under  the  covenants  of  his  lease, 
he  may  recover  the  same  from  his  assignee.  Whether  the  lessee  may 
recover  from  his  assignee  such  sums  as  he  has  been  obliged  to  pay, 
arising  out  of  the  default  of  a  second  assignee  to  whom  the  first 
assignee  has  assigned  all  his  interest,  presents  a  very  different  ques- 
tion, in  the  absence  of  an  express  agreement  to  do  so  in  the  instru- 
ment of  assignment.   For  the  implied  promise  to  perform  the  duty 


832  MASON    V.    SMITH.  [CHAP.  IV. 

imposed  upon  him  by  the  acceptance  of  the  assignment  must  be 
Hmited  to  the  time  while  he  holds  the  estate  under  the  assignment, 
and  while,  by  virtue  of  his  privity  of  estate  with  the  lessor,  he  is 
liable  to  him  for  the  performance  of  the  covenants.  In  other  words, 
the  implied  promise  cannot  include  the  payment  of  any  sums,  except 
those  which  as  assignee  he  assumes,  and  for  which,  when  he  assigns 
the  lease,  he  is  no  longer  liable  to  the  lessor.  Wolveridge  v.  Steward, 
1  Cr.  &  M.  644. 

The  presiding  judge,  therefore,  rightly  ruled  that  the  defendant 
was  only  liable  to  the  plaintiff  for  the  tax  of  1872. 

It  is  immaterial  that  the  assignment  by  the  defendant  to  Carney 
was  not  recorded.  The  provisions  of  the  Gen.  Sts.  c.  89,  §  3,  have  no 
application  here;  and  the  failure  of  Carney  to  record  the  assignment 
cannot  affect  the  rights  or  liability  of  the  defendant  in  this  case.  See 
Parsons  v.  Spaulding,  130  Mass.  83. 

Exceptions  overruled. 

Note,  -t-  See,  accord,  Bender  v.  George,  92  Pa.  36.  As  to  the  right 
of  an  assignee  to  rid  himself  of  future  liability  by  making  a  further 
assignment,  see  Johnson  v.  Sherman,  15  Cal.  287;  Hintze  v.  Thomas, 
7  Md.  346;  Washington  Gas  Co,  v.  Johnson,  123  Pa.  576. 


I 


6BCT.  n.]  LYON    V.    PAEKER.  833 


SECTION  2. 
WHERE  THERE  IS  NO  TENURE. 


LYON  V.  PARKER. 

45  Me.  474.     1858. 

Action  of  Covenant  Broken.  In  his  writ,  which  is  dated 
December  1,  1856,  the  plaintiff  declares,  in  substance,  that  on  the 
4th  day  of  April,  1849,  the  defendant  by  his  deed,  for  a  valuable  con- 
sideration, received  of  Abner  Coburn  and  others  (named) ,  owners  of 
mills,  dams  and  water  power  on  Skowhegan  Falls,  bound  and  obliged 
himself  to,  and  with  each  of  the  before-named  persons,  and  to  and 
with  each  of  the  grantees  of  either  and  all  of  them,  and  therein  and 
thereby  covenanted  and  agreed  jointly  and  severally  with  each  and 
all  of  the  before-named  persons,  and  with  each  and  all  of  the  grantees 
of  either  and  all  of  them,  that  he  would  build  a  dam  from,  etc.,  and 
would  keep  the  same  in  perfect  repair  for  the  term  of  twenty  years. 

That  plaintiff  afterwards  became  part  owner,  by  purchase  from 
Abner  Coburn  and  others,  of  a  paper  mill  and  of  a  saw  mill,  and  of  the 
water  power  aforesaid;  that  defendant  has  failed  to  perform  his 
covenants,  whereby  the  said  plaintiff  has  been  damnified. 

Appleton,  J.  It  appears  that  the  defendant,  on  April  4,  1849,  by 
his  bond  of  that  date,  "  became  bound  and  obliged  jointly  and  sever- 
ally," to  Abner  Coburn  and  others,  "owners  of  mills,  dams  and  water 
power  on  Skowhegan  Falls,"  and  also  "unto  the  grantees  of  either  or 
all  of  them  "  (naming  the  obligees  in  the  bond),  "to  complete,  main- 
tain and  keep  in  good  and  perfect  repair,  at  all  times,  for  and  during 
twenty  years  from  the  first  of  April,  a.d.  1849,  said  dam,"  etc.,  etc. 

The  plaintiff,  as  grantee  of  some  of  the  obligees  named  in  the 
bond,  brings  this  action  to  recover  damages  for  the  injuries  he  has 
sustained  by  reason  of  the  defendant's  failure  to  perform  his  cove- 
nants. 

It  is  a  familiar  principle  of  law,  that  a  bond  or  contract  under  seal 
cannot  be  assigned  so  as  to  enable  the  assignee  to  maintain  an  action 
in  his  own  name.  If  the  bond  had  been  made  to  Coburn  and  others, 
and  their  assigns,  it  would  not  be  pretended  that  an  assignee  could 
maintain  an  action  on  it  in  his  own  name.  It  does  not  strengthen  the 
plaintiff's  right  of  action  because  his  only  claim  as  assignee  arises  not 
from  an  assignment  upon  the  bond,  but  by  deed,  from  some  of  the 
assignees. 

The  defendant  is  a  stranger  to  the  title.  He  contracts  with  certain 


834  SHABER    V.    ST,    PAUL   WATER    CO.  [CHAP.  IV. 

individuals  to  do  work  upon  a  dam  belonging  to  the  obligees  in  the 
bond.  The  covenant  is  personal.  There  is  no  privity  of  contract 
between  the  plaintiff  and  the  defendant,  for  the  plaintiff  was  no 
party  to  the  bond  when  it  was  executed. 

Neither  is  there  any  privity  of  estate.  ''It  is  not  sufl&cient,"  sa3's 
Lord  Kenyon,  in  Webb  v.  Russell,  3  T.  R.  402,  "that  a  covenant  is 
concerning  the  land,  but  in  order  to  make  it  run  with  the  land,  there 
must  be  a  privity  of  estate  between  the  covenanting  parties."  There 
being  neither  privity  of  contract  nor  of  title,  the  action  is  not  main- 
tainal)le.  Plymouth  v.  Carver,  16  Pick.  183;  Hurd  v.  Curtis,  19  Pick. 
458. 

Plaintiff  nonsuit. 

Tenney,  C.J.,  Rice,  Cutting,  May,  and  Goodenow,  JJ.,  con- 
curred. 

Note.  —  See  Martin  v.  Drinan,  128  Mass.  515. 


SHABER  V.  ST.   PAUL  WATER  CO. 

30  Minn.  179.     1883. 

Berry,  J.  In  January,  1869,  John  R.  Irvine  and  Nancy  Irvine 
owned  certain  land  (in  the  city  of  St.  Paul),  through  which  ran 
Phalen  Creek,  affording  a  valuable  mill  privilege  thereon.  Leonard 
Schiegel,  as  the  lessee  of  the  Irvines,  had  constructed  a  dam  and  race 
upon  the  land,  by  which  the  mill  privilege  was  utiHzed  in  the  rumiing 
of  a  flour  mill,  which  he  had  also  erected  thereon  and  was  operating. 
By  sundry  subsequent  conveyances  the  land,  with  the  race,  dam, 
mill,  and  privilege,  came  to  Henry  Shaber,  the  plaintiff's  intestate, 
and  the  same  are  now  part  of  his  estate.  The  defendant  corporation, 
the  St.  Paul  Water  Company,  was  formed  to  supply  the  city  of  St. 
Paul  with  water.  In  January,  1869,  the  company,  in  carrying  out 
this  purpose  of  its  creation,  was  about  to  tap  Lake  Phalen  and  lay 
pipes  l)y  which  to  divert  and  draw  off  the  water  thereof.  Phalen 
Creek  flows  from  Lake  Phalen,  which  is  the  last  and  lowest  of  a  chain 
or  series  of  lakes,  constituting  a  local  water  system.  The  Irvines 
and  Schiegel  objected  to  the  proposed  diversion  of  water,  refused  to 
permit  it,  and  threatened  to  enjoin  it,  because,  unless  provision  was 
made  for  bringing  into  Lake  Phalen,  from  other  sources  and  by  arti- 
ficial mean^,  as  much  water  over  and  above  what  naturallj^  flowed 
into  the  same  as  the  company  should  at  any  time  draw  out,  the  level 
of  the  lake  would  be  lowered,  the  quantity  of  water  flowing  into  the 
creek  diminished,  and  the  mill  privilege  impaired  and  destroj-ed. 

To  remove  the  opposition,  and  to  induce  them  to  refrain  from 
enjoining  its  proceedings,  the  company  entered  into  a  written  agi-ee- 


i 


SECT.  II.]  SHABER    V.    ST.    PAUL    WATER    CO.  835 

ment,  by  which,  "for  a  good  and  valuable  consideration,"  it  cove- 
nanted and  agreed  with  the  Irvines  and  Schiegel,  "their  heirs  and 
assigns,  severally  and  separately,"  that  it  would  make  certain  speci- 
fied "improvements,"  such  as  dams,  gates,  canals,  and  channels,  all 
within  one  year  from  the  8th  day  of  February,  1869;  that  it  would  at 
all  times  thereafter  keep  and  maintain  the  same  in  a  "good,  strong, 
and  substantial  mamier,"  and  that  it  would  do  and  refrain  from 
doing  certain  other  things,  all  having  reference  to  maintaining  the 
supply  of  water  in  the  creek;  and  further,  that  the  volume  of  water 
flowing  out  of  Lake  Phalen  through  Phalen  Creek  should  never  at 
any  time  be  diminished  or  rendered  less  available  for  the  purpose  of 
the  water-power  mill  privilege  before  mentioned,  by  any  work  or 
operation  of  the  company,  than  it  had  been  before  it  commenced  its 
operations;  that  it  would  never  draw  or  take  out  of  the  lake  at  any 
time  any  more  water  than  such  quantity  as  it  should  introduce  into 
the  same  by  its  said  improvements  and  by  artificial  means  over  and 
above  the  quantity  which  naturally  flowed  into  the  same;  and  that  it 
would,  by  its  said  improvements  and  by  artificial  means,  introduce 
and  lead  into  the  lake  at  all  times  as  large  a  volume  of  water  as  it 
should  draw  out,  in  addition  to  what  flowed  into  the  lake  through 
natural  channels.  The  plaintiff  alleges  that  defendant  has  failed  to 
make  the  specified  "improvements,"  and  that  it  has  broken  its  cove- 
nants in  reference  to  maintaining  the  stage  and  quantity  of  water  in 
the  creek,  and  that,  in  consequence  of  said  failure  and  breaches,  the 
flow  of  water  in  the  creek  has  been  diminished  by  the  drawing  and 
diverting  of  water  by  defendant  from  Lake  Phalen,  and  thereby  the 
said  Shaber,  in  his  lifetime,  and  his  estate  since  his  decease,  has  been 
greatly  damaged  (as  particularly  set  forth)  in  respect  to  the  mill, 
water  privilege,  and  the  use  and  operation  of  the  same,  and  that  he 
and  his  estate  have  been  subjected  to  great  expense  and  loss  on 
account  thereof.  This  appeal  is  taken  from  an  order  overruling 
defendant's  general  demurrer  to  the  complaint. 

Our  examination  of  the  case  has  brought  us  to  the  conclusion  that 
the  appeal  presents  a  single  question,  viz. :  Whether  any  of  the  cove- 
nants entered  into  by  defendant  run  with  the  land  of  the  covenantees 
to  Shaber  and  his  estate?  This  is  a  pure  common-law  question,  to 
be  decided  upon  the  authorities. 

We  think  the  following  propositions  eml)ody  the  rules  of  law  ap- 
plicable to  the  case,  and  that  they  are  supported  by  the  authorities 
cited:  A  covenant  runs  with  land  when  cither  the  liability  to  per- 
form it,  i.e.,  its  burden,  or  the  right  to  take  advantage  of  it,  i.e.,  its 
benefit,  passes  to  the  assignee  of  the  land.  Savage  v.  Mason,  3  Cush. 
500;  1  Smith,  Lead.  Cas.  120. 

To  enable  a  covenant  to  run  with  land  so  as  to  give  the  assignee 
its  benefit,  the  covenantee  must  be  the  owner  of  the  land  to  which 
the  covenant  relates;  but  the  covenantor  may  be  either  a  person  in 


836  SHABER    V.    ST.    PAUL   WATER    CO.  [ciLiP.  IV. 

privity  of  estate  with  the  covenantee,  or  a  stranger;  while,  with  refer- 
ence to  the  subject  of  the  covenant,  it  is  sufficient  that  it  be  for  some- 
thing to  be  done,  or  refrained  from,  about,  touching,  concerning,  or 
affecting  the  covenantee's  land  (though  not  upon  it),  if  the  thing 
covenanted  for  be  for  the  benefit  of  the  same,  or  tend  to  increase  its 
value  in  the  hands  of  the  holder.  Spencer^s  Case  and  notes,  Eng.  & 
Amer.,  1  Smith,  Lead.  Cas.  (7th  Am.  Ed.)  115,  where  all  the  learning 
upon  the  subject  appears  to  be  collected;  Packenham's  Case,  42  Edw. 
III.  3,  abstracted  in  1  B.  &  C.  410,  415;  Anson  on  Contracts,  *220; 
Pollock  on  Contracts,  219;  Rawle  on  Covenants,  334,  and  notes; 
Norman  v.  Wells,  17  Wend.  136;  Norfket  v.  Cromwell,  70  N.C.  634; 
1  Smith,  Lead.  Cas.  122,  124,  139,  140,  175,  177,  181,  183;  Allen  v. 
Culver,  3  Denio,  284;  Van  Rensselaer  v.  Smith,  27  Barb.  104,  146; 
Nat.  Bank  v.  Segur,  39  N.J.  Law,  173. 

The  case  at  bar  is  controlled  by  these  principles.  The  Ir^dnes  — 
the  covenantees  —  were  the  owners  of  the  land  to  which  the  defend- 
ant's covenants  related ;  that  is  to  say,  they  owned  the  mill-site  upon 
which  was  the  water  privilege  which  it  was  the  object  and  puipose  of 
the  covenants  to  preserve  and  protect ;  and  the  covenants  were  for 
something  to  be  done,  and  to  be  refrained  from,  about,  touching,  con- 
cerning, and  affecting  the  covenantees'  land,  for  the  benefit  thereof, 
and  tending  to  increase  its  value  in  the  hands  of  the  holder.  The 
covenants  were  of  a  character  to  run  with  the  land,  so  as  to  enable 
the  assignee  of  the  covenantees  to  take  advantage  of  them.  When 
it  is  considered  what  it  was  that  the  water  company  proposed  to  do, 
and  for  what  purpose  the  covenants  were  made,  it  would  be  aston- 
ishing if  this  were  not  the  case.  The  diverting  the  water  of  Lake 
Phalen,  without  provision  for  counteracting  it,  would  be  a  perpetual 
injury  to  the  land  of  the  covenantees.  No  protection  against  such 
an  injury  would  be  adequate  unless  it  was  also  perpetual.  That 
nothing  less  could  have  been  fairly  intended  by  the  parties  to  the 
covenants  is  apparent  from  the  allegations  of  the  complaint. 

It  is  insisted  by  defendant  that  the  breach  of  the  covenants  was 
complete  before  plaintiff  had  acquired  any  interest  in  the  property 
to  which  they  related ;  that  it  had  become  a  right  of  action,  and  did 
not  pass  to  the  plaintiff.  If  the  covenants  to  make  the  specified 
improvements  within  a  year  from  February  8,  1869,  were  all  the 
covenants  entered  into,  this  point  might  possibly  be  well  taken.  But 
such  is  not  the  case.  These  improvements  are  not  only  to  be  made, 
but  at  all  times  thereafter  to  be  kept  and  maintained  in  a  "good, 
strong,  and  substantial  manner,"  and  the  volume  of  water  flowing 
out  of  Lake  Phalen  through  the  creek  is  to  be  maintained  undimin- 
ished by  any  of  the  operations  of  the  defendant,  mth  other  covenants 
of  similar  import.  These  are,  therefore,  continuing  covenants,  and 
for  that  reason,  and  because  thej^  run  with  the  land,  the  damages 
irom  their  breach  accrue  to  him  who  holds  the  property  Avhen  the 


SECT,  II.]  AUSTERBERRY.  V.    OLDHAM.  837 

breach  occurs  —  or,  in  other  words,  to  the  person  injured  —  and  to 
him  the  right  of  action  therefor  necessarily  belongs.  Jeter  v.  Gle^iii,  9 
Rich.  (S.C.)  Law,  374.  In  this  respect  they  are  analogous  to  cov- 
enants for  quiet  enjojnnent  and  warranty,  wliich  inure  to  the  protec- 
tion of  the  owner  for  the  time  being  of  the  estate  which  they  are 
intended  to  assure.  Rawle  on  Covenants,  352,  and  citations.  The 
covenants  relating  to  the  making  of  the  specified  "improvements" 
provide  for  the  means  by  which  a  certain  result  is  to  be  accomplished, 
while  these  continuing  covenants  pro\dde  for  the  result  itself.  The 
latter  are,  therefore,  the  most  important,  because  they  go  to  the  sub- 
stance rather  than  the  form  in  which  the  result  in  view  is  to  be  ac- 
compHshed.  If  the  continuing  covenants  are  kept,  the  damages  for 
the  breach  of  the  others  would  be  comparatively,  if  not  altogether, 
nominal.  For  these  reasons  we  are  of  opinion  that  the  complaint 
states  a  cause  of  action,  and  that  the  demurrer  was,  therefore,  prop- 
erly overruled. 

Note.  —  In  National  Bank  v.  Segur,  39  N.J.  L.  173,  the  court  said 
(p.  184) :  "  It  is  not  easy  to  see  why  any  contract,  which  is  of  a  nature 
to  attach  to  the  land,  and  which  has  a  beneficial  tendency,  should  not 
be  considered  assignable,  by  act  of  law,  as  against  the  covenantor, 
wdth  the  title.  In  eveiy  instance  where  the  question,  in  this  form,  is 
presented,  the  suit  being  between  the  original  covenantor  and  the 
alienee  of  the  covenantee,  if  the  making  of  the  covenant  be  not 
denied,  the  sole  point  for  solution  would  seem  to  be  whether  such 
covenant,  in  the  legal  sense,  relates  to  or  concerns  the  land."  And  see 
St.  Isolds  Ry.  V.  O'Baugh,  49  Ai-k.  418;  Randall  v.  Latham,  36  Conn. 
48;  Savage  v.  Mason,  3  Cush.  (Mass.)  500;  Ford  v.  Oregon  Ry.  Co., 
60  Or.  278;  Lydick  v.  Baltimore  R.R.  Co.,  17  W.Va.  427;'  Tennant 
v.  Tennant,  69  W.Va.  28. 

Of  course  the  benefit  will  not  run  if  that  would  be  contrary  to  the 
intent  of  the  parties  to  the  covenant.  See  Cole  v.  Hughes,  54  N.Y. 

444. 

It  is  to  be  noted  that  in  all  jurisdictions  the  benefit  of  some 
covenants  for  title  run  with  the  land.  But  this  is  a  topic  outside 
the  scope  of  this  book. 

AUSTERBERRY   v.    OLDHAM. 

L.  R.  29  Ch.  D.  750.     1885. 

Elliott,  by  deed,  conveyed  for  value  to  trustees  in  fee  a  piece  of 
land  as  part  of  the  site  of  a  road  intended  to  be  made  and  maintained 
by  the  trustees  under  the  provisions  of  a  contemporaneous  trust  deed 
(being  a  deed  of  settlement  for  the  benefit  of  a  joint  stock  company 
established  to  raise  the  necessary  capital  for  making  the  road) ;  and 


838  AUSTERBERRY    V.    OLDHAM.  [cHAP.  IV. 

in  the  conveyance  the  trustees  covenanted  with  Elliott,  his  heirs  and 
assigns,  that  they,  the  trustees,  their  heirs  and  assigns,  would  make 
the  road  and  at  all  times  keep  it  in  repair,  and  allow  the  use  of  it  by 
the  public  subject  to  tolls.  The  piece  of  land  so  conveyed  was 
bounded  on  both  sides  by  other  lands  belonging  to  Elliott.  The  trus- 
tees duly  made  the  road,  which  afforded  the  necessary  access  to 
EUiott's  adjoining  lands.  ElHott  afterwards  sold  his  adjoining  lands 
to  the  plaintiff,  and  the  trustees  sold  the  road  to  the  defendants, 
both  parties  taking  with  notice  of  the  covenant  to  repair. 

LiNDLEY,  L.J.  The  first  question  which  I  will  consider  is  whether 
that  covenant  runs  with  the  land,  as  it  is  called  —  whether  the  bene- 
fit of  it  runs  with  the  land  held  by  the  plaintiff,  and  whether  the  bur- 
den of  it  runs  with  the  land  held  by  the  defendants;  because,  if  the 
covenant  does  run  at  law,  then  the  plaintiff,  so  far  as  I  can  see,  would 
be  right  as  to  this  portion  of  his  claim.   Now,  as  regards  the  benefit 
rumiing  with  the  plaintiff's  land,  the  covenant  is,  so  far  as  the  road 
goes,  a  covenant  to  repair  the  road ;  what  I  mean  by  that  is,  there  is 
nothing  in  the  deed  which  points  particularly  to  that  portion  of  the 
road  which  abuts  upon  or  fronts  the  plaintiff's  land  —  it  is  a  cove- 
nant to  repair  the  whole  of  the  road,  no  distinction  being  made  be- 
tween the  portion  of  that  road  which  joins  or  abuts  upon  his  land 
and  the  rest  of  the  road ;  in  other  words,  it  is  a  covenant  simply  to 
make  and  maintain  this  road  as  a  public  highway;  there  is  no  cove- 
nant to  do  anything  whatever  on  the  plaintiff's  land,  and  there  is 
nothing  pointing  to  the  plaintiff's  land  in  particular.  Now  it  appears 
to  me  to  be  going  a  long  way  to  say  that  the  benefit  of  that  covenant 
runs  wdth  the  plaintiff's  land.   I  do  not  overlook  the  fact  that  the 
plaintiff  as  a  frontager  has  certain  rights  of  getting  on  to  the  road; 
and  if  this  covenant  had  been  so  worded  as  to  shew  that  there  had 
been  an  intention  to  grant  him  some  particular  benefit  in  respect  of 
that  particular  part  of  his  land,  possibly  we  might  have  said  that  the 
benefit  of  the  covenant  did  run  with  this  land ;  but  when  you  look  at 
the  covenant  it  is  a  mere  covenant  with  him,  as  with  all  adjoining 
ow^ners,  to  make  this  road,  a  small  portion  of  which  only  abuts  on  his 
land,  and  there  is  nothing  specially  relating  to  his  land  at  all.  I  can- 
not see  myself  how  any  benefit  of  this  covenant  runs  with  his  land. 
But  it  strikes  me,  I  confess,  that  there  is  a  still  more  formidable 
objection  as  regards  the  burden.    Does  the  burden  of  this  covenant 
run  with  the  land  so  as  to  bind  the  defendants?  The  defendants  have 
acquired  the  road  under  the  trustees,  and  they  are  bound  by  such 
covenant  as  runs  with  the  land.  Now  we  come  to  face  the  difficulty; 
does  a  covenant  to  repair  all  this  road  run  with  the  land  —  that  is, 
does  the  burden  of  it  descend  upon  those  to  whom  the  road  may  be 
assigned  in  future?  We  are  not  dealing  here  with  a  case  of  landlord 
and  tenant.  The  authorities  which  refer  to  that  class  of  cases  have 
little,  if  any,  bearing  upon  the  case  which  we  have  to  consider,  and  I 


SECT.  II.]  AUSTERBERRY    V.    OLDH.^M.  839 

am  not  prepared  to  say  that  any  covenant  which  imposes  a  bm'den 
upon  land  does  run  with  the  land,  unless  the  covenant  does,  upon  the 
true  construction  of  the  deed  containing  the  covenant,  amount  to 
either  a  gi-ant  of  an  easement,  or  a  rent-charge,  or  some  estate  or 
interest  in  the  land.  A  mere  covenant  to  repair,  or  to  do  something 
of  that  kind,  does  not  seem  to  me,  I  confess,  to  run  with  the  land  in 
such  a  way  as  to  bind  those  who  may  acquire  it. 

It  is  remarkable  that  the  authorities  upon  this  point,  when  they 
are  examined,  are  very  few,  and  it  is  also  remarkable  that  in  no  case 
that  I  know  of,  except  one  which  I  shall  refer  to  presently,  is  there 
anything  hke  authority  to  say  that  a  burden  of  this  kind  will  run 
with  the  land.  That  point  had  often  been  discussed,  and  I  rather 
think  the  conclusion  at  which  the  editors  of  the  last  edition  of  Smith's 
Leading  Cases  have  come  to  is  right,  that  no  case  has  been  decided 
which  does  estabUsh  that  such  a  burden  can  run  with  the  land  in  the 
sense  in  which  I  am  now  using  that  expression.  The  case  of  Holmes 
v.  Buckley,  1  Eq.  C.  Ab.  27,  looks  a  little  Hke  it  at  first;  but  the 
observation  to  be  made  on  that  case  I  think  is  this:  In  the  fii'st  place 
it  is  quite  plain  that  there  the  plaintiff  had  a  cause  of  action;  he  was 
entitled  to  an  mj  unction  of  some  sort  to  restrain  the  defendants  from 
interrupting  his  watercourse.  The  right  of  the  plaintiff  to  enforce 
specifically  the  covenant  to  repaii',  or  rather  to  cleanse  the  water- 
course, is  obscure,  and  we  have  not  got  the  decree  which  was  pro- 
nounced; and  I  confess  that  having  only  that  short  note  of  it  which 
is  to  be  found  in  ''Equity  Cases  Abridged,"  I  fail  to  understand  the 
exact  grounds  of  that  decision,  specifically  enforcing  that  covenant 
to  cleanse.  I  doubt  whether  it  was  a  decision  to  that  effect;  but  the 
case  is  too  loosely  reported  to  be  a  guide  on  the  point. 

Morland  v.  Cook,  Law  Rep.  6  Eq.  2.52,  another  case  in  which  it 
was  said  that  the  covenant  ran  with  the  land,  is  intelligible  on  this 
ground  —  that  there  was  there  that  which  amounted  to  the  creation 
of  a  rent-charge  for  the  repair  of  the  sea  wall  which  was  in  question. 
That  is  intelligible  enough,  and  if  the  covenant  in  the  present  case 
amounted  to  anything  of  the  kind,  of  course  the  observations  I  am 
now  making  would  not  be  applicable. 

The  case  before  Vice-Chancellor  Malins  of  Cooke  v.  Chilcoit,  3  Ch. 
D.  694,  has  been  so  shaken  that  I  cannot  rely  upon  it  as  an  authority 
at  all.  I  think  the  Vice-Chancellor  did  intimate  an  opinion  that  the 
covenant  there  would  run  with  the  land.  I  confess  I  doubt  the  cor- 
rectness of  that  opinion.  He  decided  the  case  upon  anotiier  point, 
and  upon  that  other  point  only  has  it  been  followed.  There  is  no  other 
authority  that  I  am  aware  of  that  such  a  covenant  as  this  runs  with 
the  land,  unless  it  is  Western  v.  Macdermott,  Law  Rep.  1  Eq.  499; 
2  Ch.  72,  where  the  Court  of  Appeal  did  not  sanction  the  notion  that 
the  covenant  in  that  case  ran  with  the  land,  altliough  the  covenant 
was  a  purely  restrictive  covenant.  I  am  not  aware  of  any  other  case 


840  MORSE    V.    ALDEICH.  [CHAP.  IV- 

which  either  shews,  or  appears  to  shew,  that  a  burden  such  as  this 
can  be  annexed  to  land  by  a  mere  covenant,  such  as  we  have  got 
here;  and  in  the  absence  of  authority  it  appears  to  me  that  we  shall 
be  perfectly  warranted  in  saying  that  the  burden  of  this  covenant 
does  not  run  with  the  land.  After  all  it  is  a  mere  personal  covenant. 
If  the  parties  had  intended  to  charge  this  land  for  ever,  into  whose- 
soever hands  it  came,  with  the  burden  of  repairing  the  road,  there 
are  ways  and  means  known  to  conveyancers  by  which  it  could  be 
done  with  comparative  ease;  all  that  would  have  been  necessary 
would  have  been  to  create  a  rent-charge  and  charge  it  on  the  tolls, 
and  the  thing  would  have  been  done.  They  have  not  done  anything 
of  the  sort,  and,  therefore,  it  seems  to  me  to  shew  that  they  did  not 
intend  to  have  a  covenant  which  should  run  with  the  land. 

Note.  —  There  is  a  dictum,  accord,  in  Brewer  v.  Marshall,  19  N.J. 
Eq.  537,  545. 

If  covenants  touching  the  land  may  not  properly  be  held  to  be 
within  the  scope  of  the  recording  acts,  it  is  submitted  that  the  doc- 
trine of  the  principal  case  should  be  followed.  See  Sjohlom  v.  Mark, 
103  Miim.  193,  and  Railway  v.  Bosworth,  46  Ohio  St.  81. 

The  question  would  still  remain  whether  the  burden  of  the  cove- 
nant should  run  in  equity  against  an  assignee  of  the  covenantor  who 
was  not  a  bona  fide  purchaser.  But  this  is  a  topic  outside  the  scope 
of  this  book. 


MORSE  V.  ALDRICH. 

19  Pick.  (Mass.)  449.     1837. 

This  was  an  action  of  covenant.  The  cause  was  tried  before 
Putnam,  J. 

In  1794,  Stephen  Cook,  the  defendants'  ancestor,  conveyed  to 
William  Hull,  in  fee,  a  tract  of  land  in  Watertown,  containing  about 
thirteen  acres;  with  the  privilege  of  using  and  improving  the  land 
and  mill  pond  west  of  the  same  tract,  for  the  purpose  of  fish  ponds, 
baths,  etc.,  within  certain  bounds  described,  including  a  portion  of 
the  grantor's  mill  pond;  and  the  "full  liberty  of  ingress,  egress,  and 
regress  to  and  from  any  part  of  the  said  described  land  and  water, 
to  dig  out  and  carry  away  the  whole  or  any  part  of  the  soil,  etc.;  to 
build  such  causeways  and  dams  as  may  be  necessary  to  divide  the 
same  into  six  separate  and  distinct  fish  ponds." 

Hull  conveyed  the  same  premises  to  the  plaintiff. 

Afterward,  in  November,  1809,  an  agreement  under  seal  was  made 
by  and  between  Cook  and  the  plaintiff,  in  which,  in  consideration  of 
the  covenants  on  the  part  of  the  plaintiff,  Cook  covenants  with  the 


SECT.  II.]  MORSE   V.    ALDRICH.  841 

plaintiff,  his  heirs  and  assigns,  "that  he  will  draw  off  his  said  pond 
when  thereto  requested  by  said  Moi-se,  in  the  months  of  August  and 
September,  not  exceeding  six  working  days  in  the  whole,  in  each  year, 
for  the  purpose  of  giving  said  Morse  an  opportunity  of  digging  and 
carrjdng  out  mud,  etc.,  as  long  as  there  may  be  mud  in  said  pond, 
and  no  longer."  It  was  upon  this  clause  that  the  present  action  was 
brought.  In  the  same  agreement  are  other  covenants,  some  con- 
cerning Morse's  land  and  Cook's  mill  pond,  and  some  concerning 
the  discontinuance  and  costs  of  certain  actions  then  pending  between 
Cook  and  Morse.  Cook  does  not  covenant,  ui  express  terms,  for  his 
heirs  or  assigns. 

It  was  contended  by  the  plaintiff  that  the  covenant  above  recited 
was  a  covenant  rumiing  with  the  land,  and  therefore  binding  upon 
the  defendants,  who  derive  their  title  to  their  estate  as  heirs  of  Cook, 
as  to  four  fifths  thereof,  and  as  assignees  by  quitclaim,  of  one  of  his 
heirs,  as  to  the  other  fifth.  And  this  construction  was  supported 
at  the  trial,  against  the  objection  of  the  defendant.  The  plaintiff 
claimed  the  right  to  take  the  mud,  etc.,  for  the  puipose  of  manuring 
his  land. 

The  plaintiff  requested  the  defendants  to  draw  off  the  pond  in 
September,  1835,  in  order  that  he  might  get  out  the  mud,  but  the 
defendants  refused. 

Wilde,  J.  The  defendants  are  charged,  as  the  heirs  of  Stephen 
Cook,  their  ancestor,  with  the  breach  of  a  covenant  made  by  him 
with  the  plaintiff,  and  the  question  submitted  to  the  court  is, 
whether  this  covenant  is  such  as  is  binding  upon  the  heirs  of  the 
covenantor.  And  the  decision  of  this  question  depends  on  another, 
namely,  whether  the  covenant  is  a  real  covenant,  running  with  the 
land,  which  the  defendants  inherit  from  their  ancestor,  the  cove- 
nantor. 

It  is  generally  true,  as  has  been  argued  by  the  defendants'  counsel, 
that,  by  the  principles  of  the  common  law,  the  heir  is  not  bound  by 
the  covenant  of  his  ancestor,  unless  it  be  stipulated  by  the  terms  of 
the  covenant,  that  it  shall  be  performed  by  the  heir;  and  unless  assets 
descend  to  him  from  his  ancestor  sufficient  to  answer  the  charge. 
Piatt  on  Cov.  449;  Dyer  14  a,  23  a;  Barber  v.  Fox,  2  Saund.  136.  If 
therefore  the  heir  be  not  named  in  the  covenant,  it  will  be  l^inding 
only  on  the  covenantor,  his  executors  and  administrators,  although 
the  heir  may  take  by  descent  from  the  covenantor  assets  sufficient 
to  answer  the  claim. 

But  this  principle  is  not  to  be  applied  to  real  covenants  running 
with  the  land  granted  or  demised,  and  to  which  the  covenants  are 
attached  for  the  pui-pose  of  securing  to  the  one  party  the  full  benefit 
of  the  grant  or  demise,  or  to  the  other  party  the  consideration  on 
which  the  grant  or  demise  was  made.  Such  covenants  arc  said  to  be 
inherent  in  the  land,  and  will  bind  the  heir  or  the  assignee  though 


842  MORSE   V.    ALDRICH.  [CHAP.  IV. 

not  named.  For  as  he  is  entitled  to  all  the  advantages  arising  from 
the  grant  or  demise,  it  is  but  reasonable  that  he  should  sustain  all 
such  burdens  as  are  amiexed  to  the  land.  Piatt  on  Co  v.  65. 

When  a  covenant  is  said  to  run  with  the  land,  it  is  obviously- 
implied  that  he  who  holds  the  land,  whether  by  descent  from  the 
covenantor,  or  by  his  express  assignment,  shall  be  bound  by  the 
covenant.  The  heir  may  be  charged  as  an  assignee,  for  he  is  an 
assignee  in  law,  and  so  an  executor  may  be  charged  as  the  assignee 
of  the  testator.  Derisley  v.  Custance,  4  T.  R.  75;  Jac.  Law  Diet. 
Assigns.  And  a  devisee  may  be  charged  in  the  like  manner,  and  is 
entitled  to  the  benefit  of  any  covenant  running  with  the  land. 
Kingdon  v.  Nottle,  4  Maule  &  Selw.  53. 

If  then  the  covenant  in  question  runs  with  the  land,  it  is  clear  that 
the  defendants  are  liable;  and  it  is  immaterial  whether  the  heirs  and 
assigns  of  the  covenantor  are  named  in  the  covenant,  or  not,  quia 
transit  terra  cum  onere.  Bally  v.  Wells,  3  Wils.  29. 

To  create  a  covenant  which  will  run  with  the  land,  it  is  necessary 
that  there  should  be  a  privity  of  estate  between  the  covenantor  and 
covenantee.  Spencer's  Case,  5  Co.  16;  Cole's  Case,  Salk.  196;  3  Wils. 
29;  Webb  v.  Russell,  3  T.  R.  402;  Keppell  v.  Bailey,  2  Myhie  &  Keen, 
517;  Vyvyan  v.  Arthur,  1  Barn.  &  Cressw.  410.  In  these  cases,  and 
in  most  of  the  cases  on  the  same  subject,  the  covenants  were  between 
lessors  and  lessees;  but  the  same  privity  exists  between  the  grantor 
and  grantee,  where  a  grant  is  made  of  any  subordinate  interest  in 
land;  the  reversion  or  residue  of  the  estate  being  reserved  by  the 
grantor,  all  covenants  in  support  of  the  grant,  or  in  relation  to 
the  beneficial  enjoyment  of  it,  are  real  covenants  and  will  bind  the 
assignee. 

This  principle  is  decisive  of  the  present  action.  It  appears  by  the 
deed  of  Stephen  Cook,  the  defendants'  ancestor,  to  William  Hull, 
that  the  former  conveyed  to  the  latter  a  tract  of  land  adjoining  the 
mill  pond  in  question,  "with  the  full  and  free  privilege  of  using  and 
improving  the  said  mill  pond  within  certain  Umits,  with  the  full 
liberty  of  ingress  and  egress,  to  dig  out  and  carry  away  the  whole  or 
any  part  of  the  soil  in  said  pond,  and  to  divide  the  same  pond,  as 
described  in  the  deed,  into  six  separate  and  distinct  fish  ponds." 

William  Hull  conveyed  the  premises  to  the  plaintiff;  after  which, 
disputes  arose  between  Cook  and  the  plaintiff  relative  to  their 
respective  rights,  and  for  settling  the  same  they  entered  into  sundry 
covenants  in  relation  to  said  grant,  and  qualifying  the  same;  for  the 
breach  of  one  of  which  this  action  was  brought.  At  the  time  these 
covenants  were  made,  there  was  a  privity  of  estate  between  the 
parties  in  that  part  of  the  mill  pond  described  in  the  grant  to  Hull. 
The  covenant  in  question  was  made  in  reference  to  the  plaintiff's 
right  and  interest  under  that  grant,  and  was  manifestly  intended  to 
confirm  it,  and  to  secure  the  plaintiff  in  the  enjoyment  thereof.  This 


SECT.  II.]  ROCHE  V.    ULLMAN.  843 

covenant  therefore,  upon  the  principles  stated,  is  a  real  covenant, 
running  with  the  land,  and  is  binding  on  the  heirs  ol  the  covenantor. 

Judgment  on  the  verdict. 

Note.  —  For  other  authorities  that  the  burden  of  a  covenant  in 
aid  of  an  easement  runs  with  the  land,  see  Farmers  Co.\.  New  Hamp- 
shire Co.,  40  Col.  467;  Fitch  v.  Johnson,  104  111.  Ill;  Nye  v.  Hoijle, 
120  N.Y.  195;  Norfieet  v.  Cohb,  64  N.C.  1;  Carr  v.  Lowry's 
Adm'x,  27  Pa.  257.   See,  coiitra.  Smith  v.  Kelley,  56  Me.  64. 

Hannen  v.  Ewalt,  18  Pa.  9.  An  action  of  covenant  is  maintainable 
against  the  assignees  of  land  subject  to  a  ground  rent  for  rent  accru- 
ing while  they  were  o\\Tiers  of  such  land. 


ROCHE  V.  ULLMAN. 

lO-i  111.  11.     1882. 

This  is  an  appeal  from  a  judgment  of  the  Appellate  Court  for  the 
First  District,  affinning  a  decree  of  the  Superior  Court  of  Cook 
County,  wherein  the  appellant,  Walter  P.  Roche,  is  charged  person- 
ally, as  the  assignee  of  William  M.  Butler,  with  one-half  the  cost  of  a 
party  wall  constructed  by  appellee,  under  a  written  contract  with 
Butler,  upon  the  dividing  line  between  adjacent  lots  in  the  city  of 
Chicago,  belonging,  respectively,  to  Butler  and  appellee. 

In  1872,  Joseph  UUman,  the  appellee,  owned  the  west  half  of  the 
west  half  of  lot  2,  block  31,  original  town  of  Chicago,  and  William 
M.  Butler  owned  the  east  half  of  the  west  half  of  the  same  lot.  July 
16,  1872,  Ullman  and  Butler  made  the  following  party  wall  agree- 
ment :  — 

"This  agreement,  made  and  entered  into  this  16th  day  of  July, 
A.D.  1872,  between  Joseph  Ullman,  of  the  city  of  Chicago,  State  of 
Illinois,  party  of  the  first  part,  and  William  M.  Butler,  of  the  same 
city  and  State,  party  of  the  second  part :  — 

"Witnesseth:  Whereas,  said  party  of  the  first  part  is  the  owner  in 
fee  simple  of  the  following  described  lot  or  parcel  of  land  in  the  city 
of  Chicago,  county  of  Cook,  State  of  Illinois:  the  west  quarter  of  lot 
number  two  (2),  of  block  thirty-one  (31),  in  the  original  town  (now 
city)  of  Chicago;  and  whereas,  said  party  of  the  second  part  is  owner 
in  fee  simple  of  the  east  half  of  the  west  half  of  lot  number  two  (2), 
of  block  thirty-one  (31),  in  the  original  town  (now  city)  of  Cliicago; 
and  whereas,  said  party  of  the  first  part  is  about  to  erect  a  brick  wall, 
with  a  good  and  substantial  foundation  of  stone,  on  the  division  line 
of  said  two  parcels  of  land  above  named,  four  stories  high  aljove  the 
basement,  and  one  hundred  and  sixty  feet  from  front  to  rear,  the  wall 
basement  to  be  twenty  inches  thick,  wall  of  first  and  second,  stories 


844  ROCHE    V.    ULLMAN.  [CHAP.  IV. 

to  be  sixteen  inches  thick,  wall  of  third  and  fourth  twelve  inches 
thick  to  top  of  battlement  wall,  is  to  extend  eighteen  inches  above 
the  roof  of  said  proposed  buildings;  and  whereas,  said  wall  is  to  be 
built  one-half  on  said  east  one-half  of  the  west  one-half  of  lot  2, 
block  31,  and  said  other  one-half  of  wall  is  to  be  built  upon  the  west 
one-fourth  of  said  lot  2,  block  31,  original  town;  and,  whereas,  both 
of  said  party  owners  desire  to  use  and  owti  said  wall  as  a  party  waU 
and  for  common  benefit :  —  It  is  hereby  mutually  covenanted  and 
agi-eed  that  said  wall,  of  the  size  and  dimensions  above  described, 
the  division  line  of  the  said  above-described  parcels  of  land  being  the 
center  of  said  wall,  and  said  second  party  should  have  the  right,  at 
any  time,  to  use  said  wall,  or  any  part  thereof  as  he  may  need,  as  a 
party  wall  for  any  building  erected  upon  his  said  east  half  of  west 
half  of  lot  2,  block  31,  original  town,  pro\dded  said  second  party  shall 
first  pay  said  party  of  the  first  part  the  then  mai-ket  value  of  said 
wall,  or  such  part  of  said  wall  as  he,  the  said  party  of  the  second  part, 
may  want  or  use.  It  is  further  agreed  that  the  wall  shall  be  ledged 
out  four  inches  at  each  resting  for  the  floor  joists  of  each  and  every 
story  of  said  building.  It  is  also  further  agreed  that  the  party  of  the 
second  pai*t  will  be  to  the  expense  of  one-half  of  all  the  area  walls, 
both  front  and  rear,  upon  like  conditions  of  the  foregoing  contract 
for  building  walls.  It  is  also  further  agreed  that  all  the  covenants 
and  agreements  herein  contained  shall  be  binding  upon  each  party, 
their  heirs,  executors,  administrators  and  assigns,  and  grantees  of 
the  said  parties  of  the  first  and  second  part,  and  shall  be  so  construed 
as  to  run  with  the  land. 

"  In  witness  w^hereof  the  said  parties  have  hereunto  set  their  hands 
and  seals,  the  day  and  year  above  written. 

"Jos.  Ullman,  [seal.] 

"William  M.  Butler,     [seal.]" 

This  agreement  was  recorded  in  the  recorder's  office  of  Cook 
County,  August  2,  1872.  Ullman  built  the  wall.  Roche  acquired  the 
land  of  Butler,  made  use  of  the  wall,  and  declined  to  pay  any  part  of 
its  cost. 

Mr.  Justice  Mulkey  deUvered  the  opinion  of  the  court. 

By  the  agreement  between  Butler  and  Ullman  the  latter  was 
authorized  to  build  a  party  wall,  the  east  half  of  which  was  to  rest 
on  Butler's  part  of  the  lot,  and  the  west  half  on  Ullman's,  and  it  was 
expressly  provided  that  when  so  built,  Butler,  upon  payment  of  one- 
half  the  cost  of  its  construction,  should  have  the  right  to  use  the  same, 
or  such  part  of  it  as  he  might  need,  as  a  party  wall  for  any  building  he 
might  erect  on  his  part  of  the  lot.  The  legal  effect  of  this  agreement, 
upon  its  performance,  was  to  give  to  each  of  the  parties  an  easement 
on  the  other's  lot  for  the  purpose  of  support  of  their  respective  build- 
ings, which  became  appurtenant  to  their  several  estates,  and  as  such 
would  pass  to  their  respective  assignees  by  any  mode  of  conveyance 


SECT,  n.]  ROCHE    V.    ULLMAN.  845 

that  would  transfer  the  land  itself.  That  such  would  have  been  the 
effect  of  the  agreement  had  it  been  executed  on  the  part  of  Butler,  is 
not  questioned.  But  it  is  claimed  that  Roche,  his  assignee,  occupies  a 
better  position  with  respect  to  the  agi'eement  than  Butler,  through 
whom  he  claims,  —  that  while  he  may  avail  himself  of  all  its  benefits, 
he  is  reUeved  of  all  obligations  to  perform  its  burdens.  If  this  be  the 
correct  view,  it  must  be  conceded  it  results  solely  from  the  fact  the 
parties  to  the  agi-eement  had  no  power  to  impose  its  burdens  as  well 
as  its  benefits  upon  theu'  assignees,  for  nothing  can  be  clearer  than 
it  was  then-  intention  to  do  so,  and  it  is  equally  clear  the  terms  expres- 
sive of  such  intention  are  altogether  appropriate  and  sufficient  for 
that  purpose,  if,  as  matter  of  law,  they  had  power  to  thus  bind  their 
assignees.  The  language  of  the  agreement  expressive  of  such  inten- 
tion is:  "It  is  also  further  agi'eed,  that  all  the  covenants  and  agi-ee- 
ments  herein  contained  shall  be  binding  upon  each  party,  their  heirs, 
executors,  administratoi-s  and  assigns,  and  grantees  of  the  said  par- 
ties of  the  first  and  second  part,  and  shall  be  so  construed  as  to  tun 
with  the  land."  There  can  be  no  mistaldng  the  object  and  pm-pose 
which  the  parties  sought  to  accomplish  by  this  provision,  and  appel- 
lant, ha\'ing  bought  with  constructive,  and  doubtless  actual,  notice 
of  it,  must  be  presumed  to  have  intentionally  assumed  the  burdens 
as  well  as  the  benefits  of  the  agreement.  The  duty  of  pajdng  for  one- 
half  the  wall  being  a  continuing  Hability  resting  upon  the  owner  of 
the  lot  in  his  character  of  owner,  and  this  not  having  been  paid  at  the 
time  of  appellant's  purchase,  it  is  to  be  presumed  that  in  becoming 
a  purchaser,  and  thus  assuming  the  relation  of  owner  himself,  he  paid 
less  for  the  property  by  the  amount  of  the  incumbrance  than  he 
otherwise  would  have  done.  Such  being  the  case,  it  would  now  be 
highly  inequitable  to  permit  liim  to  enjoy  the  benefit  of  the  wall 
without  reimbursing  Ullman  for  one-half  its  cost. 

But  outside  of  the  equitable  view  here  suggested,  we  think  the  law 
is  with  appellee  on  other  grounds.  While  the  authorities  are  not 
altogether  harmonious  with  respect  to  the  legal  effect  of  covenants 
and  agreements  providing  for  the  construction  of  party  walls  be- 
tween adjacent  proprietors,  yet  we  think  the  decided  weight  of 
authority  estabhshes  the  position  that  an  agi-eement  under  the  hands 
and  seals  of  such  parties,  containing  covenants  and  stipulations  like 
those  found  in  the  instrument  we  are  considering,  will,  when  duly 
delivered  and  acted  upon,  as  was  done  in  this  case,  create  cross- 
easements  in  the  respective  owners  of  the  adjacent  lots  with  which 
the  covenants  in  the  agreement  will  run,  so  as  to  bind  all  persons 
succeeding  to  the  estates  to  which  such  easements  are  appurtenant. 
This  being  so,  it  follows  that  Roche,  in  succeeding  to  the  east  half  of 
the  lot,  whereby  he  acquired  an  easement  in  the  west  half,  became 
bound  for  the  performance  of  the  covenant  to  pay  one-half  the  cost 
of  constructing  the  wall.  We  do  not  deem  it  necessary  to  enter  upon 


846  EOCHE    V.    ULLMAN.  [cHAP.  IV. 

a  review  of  the  authorities  upon  this  subject,  but  will  content  our- 
selves with  a  reference  to  the  following  cases,  which  are  believed  to 
sustain  the  conclusion  reached:  Keteltas  v.  Penfield,  4  E.  D.  Smith 
(N.Y.)  122;  Savagev.  Mason,  3  Cush.  (Mass.)  504;  Mamew.  Cwnston, 
98  Mass.  317;  Standish  v.  Lawrence,  id.  Ill;  Dorsey  v.  St.  Louis, 
Alton  and  Terre  Haute  R.R.  Co.,  58  111.  68;  Sterling  Hydraulic  Co.  v. 
Williams,  66  id.  397;  Rindge  v.  Baker,  57  N.Y.  209;  note  to  Spencer^ s 
Case,  Smith's  Leading  Cases  (6th  Am.  ed.)  211;  Weyman's  Exrs.  v. 
Ringold,  1  Bradf.  40;  Giles  v.  Dugro,  1  Duer  331. 

The  decision  in  Goodrich  v.  Lincoln,  93  111.  359,  does  not  conflict 
with  the  conclusion  reached  in  the  present  case. 

We  concede  the  general  doctrine,  as  contended  for  by  appellant's 
counsel,  that  where  the  relation  of  landlord  and  tenant  does  not  exist, 
only  such  covenants  as  are  beneficial  to  the  estate  will  run  with  the 
land,  but  we  do  not  regard  the  doctrine  as  apphcable  to  cases  where 
adjacent  proprietors  have,  as  in  the  present  case,  so  contracted  as  to 
create  mutual  easements  upon  each  other's  estates,  and  entered  into 
covenants  with  respect  to  the  same.  The  new  relation  thus  created 
being  of  an  intimate  character,  involving  reciprocal  duties  with 
respect  to  each  other's  estates,  may  be  regarded  as  an  equivalent  for 
the  absence  of  tenure,  so  as  to  give  effect  to  all  covenants  without 
regard  to  whether  they  are  beneficial  or  onerous.  However  this  may 
be,  it  is  clear  the  rule  contended  for  does  not  seem  to  be  applied  in 
this  class  of  cases. 

The  judgment  of  the  Appellate  Court  is  aflSrmed. 

Judgment  affirmed. 

Note.  —  See,  accord,  Conduitt  v.  Ross,  102  Ind.  166;  Maine  v. 
Cwnston,  98  Mass.  317;  Adams  v.  Noble,  120  Mich.  545;  National 
Life  Insurance  Co.  v.  Lee^  75  Minn.  157;  Sharp  v.  Cheatham,  88  Mo. 
498;  Stehr  v.  Raben,  33  Neb.  437;  Parsons  v.  Baltimore  Ass'n,  44 
W.Va.  335.  See  also  Irving  v.  Turnhull,  [1900]  2  Q.B.  129. 

But  cf.  Pfeiffer  v.  Matthews,  161  Mass.  487;  Lincoln  v.  Burrage, 
177  Mass.  378;  Cole  v.  Hughes,  54  N.Y.  444;  Sebald  v.  Mulholland, 
155  N.Y.  455. 

Gilmer  v.  Mobile  Ry.  Co.,  79  Ala.  569.  A  conveyed  land  to  a  rail- 
road company.  A  had  a  right  to  cultivate  the  land  so  conveyed  which 
was  not  needed  for  use  by  the  company.  The  company  covenanted 
to  erect  a  flag-station,  and  the  court  held  the  assignee  of  the  company 
bound  by  such  covenant.  The  grantor  "  retained  the  right  to  culti- 
vate [the  land]  under  certain  conditions  and  circumstances;  thus 
retaining  an  interest  in  the  realty  which  would  preserve  the  privity 
of  estate  in  it,  and  to  which  the  covenant  of  defendant  would  attach, 
or  become  annexed." 

Batavia  Mfg.  Co.  v.  Newton  Wagon  Co.,  91  HI.  230,  248.  A  granted 
land  to  B,  and  A  covenanted  to  repair  a  dam  on  land  not  granted. 


CHAP.  II.]  HTRD   V.    CURTIS.  847 

B  had  a  right  to  enter  on  A's  land  to  make  the  repairs,  if  they  were 
not  duly  made.  It  was  held  that  the  assignee  of  A  was  bound  by 
such  covenant. 

Doty  V.  Railroad,  103  Tenn.  564.  A  granted  an  easement  in  land 
to  a  railroad  company,  and  the  company  covenanted  to  run  daily 
trains  over  the  land  so  granted.  It  was  held  that  the  assignee  of  the 
company  was  bound  by  such  covenant. 

Wooliscroft  V.  Norton,  15  Wis.  198.  A  covenanted  to  pay  part  of 
the  expenses  of  repairing  a  dam.  B,  the  covenantee,  had  a  right  to 
shut  off  water  running  to  A's  land,  if  such  payment  were  not  made. 
It  was  held  that  the  assignee  of  A  was  bound  by  such  covenant. 

But,  even  where  there  is  privity  of  estate  within  the  doctrine  of  the 
cases  cited  above,  of  course  the  burden  of  the  covenant  will  not  run, 
unless  the  covenant  touches  the  land.  See  Wiggins  Ferry  Co.  v.  Ohio 
Ry.  Co.,  94  111.  83  (A  granted  an  easement  to  a  railroad  company, 
and  the  company  covenanted  to  make  a  specified  use  of  a  ferry  be- 
longing to  A) ;  Dickey  v.  Railway  Co.,  122  Mo.  223  (A  granted  an 
easement  to  a  railroad  company,  and  the  company  covenanted  that 
A  should  forever  have  free  transportation  over  the  railroad);  Eddy 
v.  Huinant,  82  Tex.  354  (same);  Kettle  River  R.R.  Co.  v.  Eastern  Ry. 
Co.,  41  Minn.  461  (A  granted  an  easement  to  a  railroad  company, 
and  covenanted  to  make  specified  shipments  over  the  railroad). 


HURD  V.  CURTIS. 

19  Pick.  (Mass.)  459.     1837. 

Action  of  covenant.  The  declaration  recites,  that,  in  1816,  an 
indenture  of  four  parts  was  made  between  Simon  Eliot  and  Solomon 
Curtis,  of  the  first  part,  Moses  Grant,  of  the  second,  Hurd,  the  plain- 
tiff, and  Charles  Bemis,  of  the  third,  and  John  Ware,  of  the  iourth, 
owners  of  the  mills  and  mill  privileges  on  the  upper  dam  of  Newton 
Lower  Falls,  to  wit,  two  paper-mills  and  a  saw-mill,  with  their  mill 
privileges,  on  the  Needham  side  of  the  liver,  and  four  paper-mills, 
one  fulling-mill  and  one  saw-mill  wdth  their  mill  privileges,  on  the 
Newton  side,  for  the  purpose  of  fixing  the  quantity  of  water  which 
the  several  parties  should  have  a  right  to  draw  at  their  respective 
mills  and  mill  privileges,  to  regulate  the  use  of  the  same,  and  for 
some  other  purposes  therein  set  forth,  did  for  themselves,  their 
heirs,  administrators  and  assigns,  respectively  covenant  and  agree 
to  and  with  each  other  and  their  respective  heirs,  administrators 
and  assigns,  that  the  six  paper-mills  and  the  fulling-mill,  should 
have  the  first  and  exclusive  right  to  the  use  of  the  water,  when  no 
more  ran  to  the  paper-mills  and  fulling-mill  then  erected  and  used, 
or  that  might  be  erected  and  used  on  the  six  paper-mill  privileges 


848  HURD    V.    CURTIS.  [cHAP.  IV. 

and  fulling-mill  privilege,  than  should  be  necessary  to  work  them  to 
advantage,  and  that  the  saw-mill  owned  by  Hurd  and  Bemis  should 
have  the  second  right  of  water,  or  the  first  right  to  the  overplus 
water;  that  all  the  paper-mills  and  the  fuUing-mill,  then  erected  or 
that  might  be  erected,  should  be  altered  and  built  with  breast-wheels, 
each  for  a  power  equal  to  carrj'ing  two  paper  engines,  in  the  paper- 
mills,  and  for  a  power  equal  to  carrying  a  fulling  and  wool-carding 
machine,  in  the  fulling-mill;  that  all  the  gates  of  all  the  mills,  or 
breast-wheels,  should  be  drawn  from  the  same  level,  and  should  be 
on  a  level  with  some  permanent  mark,  to  be  made  by  consent  of  the 
parties;  that  the  respective  parties,  and  their  heirs  and  assigns, 
should  have  a  right  to  substitute  and  erect  any  other  mills,  works  or 
machinery,  in  the  place  of  those  then  erected,  provided  the  new  mills, 
works  and  machinery  should  require  no  greater  power  than  the  mills, 
works  and  machinery  which  the  parties  had  a  right  to  erect  and  use 
by  virtue  of  the  indenture.  The  declaration  then  avers  that,  at  the 
time  of  the  making  of  the  indenture,  the  plaintiff  was  the  owner  of 
one  undivided  half  of  the  saw-mill  on  the  Newton  side,  and  of  the 
first  right  to  the  overplus  water,  and  that  Bemis  was  the  owner  of 
the  other  undivided  half;  that  in  1817,  Bemis  conveyed  his  half  to 
the  plaintiff;  that  the  two  paper-mills  and  paper-mill  privileges  on 
the  Newton  side,  which  belonged  to  Eliot  and  Solomon  Curtis,  and 
the  fulUng-mill,  with  the  privilege  of  water  to  work  a  fulling  and 
wool-carding  machine,  which  belonged  to  Ware,  have  since  the  mak- 
ing of  the  indenture  been  conveyed  to  the  defendants,  and  these  two 
paper-mill  privileges  and  the  fulling-mill  privilege  have,  for  eleven 
years  last  past,  been  used  and  occupied  by  the  defendants;  that  the 
defendants  had  due  notice  and  full  knowledge  of  the  covenants  and 
agreements  in  the  indenture  set  forth,  on  the  part  of  Ware,  EUot 
and  S.  Curtis,  and  their  respective  heirs,  administrators  and  assigns, 
to  be  kept  and  performed,  and  that  the  same  are  binding  upon  the 
defendants;  yet  that  the  defendants  have  erected  and  used  and  now 
use,  on  their  two  paper-mill  privileges,  breast-wheels  constructed  for 
a  power  much  more  than  equal  to  carrying  two  paper  engines  in  each 
of  their  paper-mills,  to  wit,  for  a  power  equal  to  carr^-ing  six  paper 
engines  in  each  of  their  paper-mills,  and  have  actually  carried  the 
same,  and  on  the  fulling-mill  privilege  they  have,  erected  and  used 
breast-wheels  for  a  power  more  than  equal  to  carrjdng  one  fulling  and 
wool-carding  machine,  to  wit,  for  a  power  equal  to  carrjdng  four 
fulling  and  wool-carding  machines,  and  have  actually  carried  the 
same;  and  have  also  substituted  and  actually  used,  in  the  place  of 
the  mills,  works  and  machinery  used  on  the  two  paper-mill  pri\'ileges 
and  the  fulling-mill  privilege,  at  the  time  of  the  making  of  the  inden- 
ture, others  which  require  a  much  greater  power  to  carry  the  same 
than  those  which  the  defendants  have  a  right  to  erect  and  use  thereon 
by  virtue  of  the  indenture;  whereby  the  plaintiff  has  lost  the  use  and 


SECT.  II.]  HURD    V.    CURTIS.  849 

benefit  of  his  saw-mill  and  of  his  first  right  to  the  overplus  water,  as 
secured  to  him  by  the  indenture. 

The  defendants  demurred. 

Wilde,  J.  The  plaintiff  claims  damages  of  the  defendants  for  a 
breach  by  them  of  certain  covenants  contained  in  an  indenture  made 
by  and  between  the  plaintiff  and  several  other  persons,  who  were 
owners  of  mills  on  Charles  River,  at  Newton  Lower  Falls,  so  called, 
the  object  and  intent  of  the  indenture  being  to  Umit  and  regulate  the 
use  of  the  waters  of  the  river  at  their  respective  mills.  The  defend- 
ants were  not  parties  to  the  indenture,  but  they  have  since  purchased 
of  two  of  the  covenantors  their  mills  mentioned  in  the  indenture, 
and  the  question  is,  whether  they  are  bound  as  assignees  by  any  of 
the  covenants  between  the  contracting  parties,  as  is  alleged  in  the 
declaration. 

To  make  a  defendant  liable  to  an  action  of  covenant,  there  must 
be  a  privity  between  him  and  the  plaintiff.  Bally  v.  Wells,  3  Wils.  29. 
As  there  is  no  privity  of  contract  between  the  plaintiff  and  the  de- 
fendants, it  follows  that  the  defendants  are  not  liable  in  this  action, 
unless  there  is  a  privity  of  estate  between  them.  Where  such  a  priv- 
ity exists  between  the  covenantor  and  the  covenantee,  and  the  cove- 
nantor assigns  his  estate,  the  privity  thereby  created  between  the 
assignee  and  the  other  contracting  party  renders  the  former  liable  on 
all  such  covenants  as  regulate  the  mode  of  occupying  the  estate,  and 
the  like  covenants  concerning  the  same.  And  so  if  the  covenantee 
assigns  his  estate,  his  assignee  will  have  the  benefit  of  similar  cove- 
nants. These  covenants  are  annexed  to  the  land  and  run  with  it. 
But  if  there  is  no  privity  of  estate  between  the  contracting  parties, 
the  assignee  will  not  be  bound  by,  nor  have  the  benefit  of  any  cove- 
nants between  the  contracting  parties,  although  they  may  relate 
to  the  land  he  takes  by  assignment  or  purchase  from  one  of  the 
parties  to  the  contract.  In  such  a  case,  the  covenants  are  personal 
and  are  collateral  to  the  land. 

Covenants  for  title  may  be  considered  as  an  exception  to  the  gen- 
eral rule,  and  the  reason  for  the  exception  is  very  strong;  for  nothing 
can  be  more  manifestly  just  than  that  the  party  who  loses  his  land 
by  a  defect  of  title  should  have  the  benefit  of  the  covenants  which 
were  intended  to  secure  an  indemnity  for  the  loss.  Such  a  covenant  is 
dependent  on  the  grant,  is  annexed  to  it,  as  part  and  parcel  of  the 
contract,  and  runs  with  the  land  in  favor  of  the  assigns  of  the  grantee 
or  covenantee ;  but  there  is  no  exception  to  the  rule,  that  no  covenant 
will  run  with  the  land  so  as  to  bind  the  assignee  to  perform  it,  unless 
there  were  a  privity  of  estate  between  the  covenantor  and  covenan- 
tee. "It  is  not  sufficient,"  as  Lord  Kenyon  remarks,  in  Webb  y. 
Russell,  3  T.  R.  402,  "that  a  covenant  is  concerning  the  land,  but  in 
order  to  make  it  run  with  the  land,  there  must  be  a  privity  of  estate 
between  the  covenanting  parties."    And  so  the  law  has  been  laid 


850  HURD    V.    CURTIS.  [CHAP.  IV. 

down  in  all  the  cases  turning  on  this  point,  ever  since  Spencer's 
Case. 

A  covenant  to  build  a  house  on  the  land  of  a  third  person  is  a  mere 
personal  covenant;  but  a  covenant  to  build  a  house,  or  a  new  wall, 
on  the  land  demised,  will  run  with  the  land  demised  and  bind  the 
assignee,  on  account  of  the  privity  of  estate  between  the  covenanting 
parties.  Spencer's  Case,  5  Co.  16. 

In  Cole's  Case,  1  Salk.  196,  a  house  had  been  leased,  excepting  two 
rooms,  and  free  passage  to  them.  The  lessee  assigned,  and  the  as- 
signee disturbed  the  lessor  in  the  passage  thereto,  and  for  this  dis- 
turbance the  lessor  brought  covenant.  The  action  was  maintained, 
because  of  the  privity  of  estate  in  the  passage ;  but  it  is  laid  down  as 
clear  law,  that  if  the  disturbance  had  been  in  either  of  the  rooms,  no 
action  of  covenant  would  have  lain,  because  the  rooms  were  excepted. 
As  to  them  there  was  no  privity  of  estate  between  the  parties. 

In  Vyvyan  v.  Arthur,  1  Bam.  &  Cressw.  410,  the  owner  of  a  mill, 
and  certain  lands,  had  leased  the  latter  for  a  term  of  years,  yielding 
and  paying  certain  rents,  and  also  doing  suit  to  the  mill  of  the  lessor, 
by  grinding  all  such  corn  there  as  should  grow  upon  the  demised 
premises;  and  in  an  action  of  covenant  brought  by  the  assignee  of  the 
lessor  of  the  mill  and  the  reversion  of  the  lands,  against  the  lessee,  it 
was  held  that  the  reservation  of  the  suit  to  the  mill  was  in  nature  of 
a  rent  service,  and  that  the  implied  covenant  to  render  it  was  a  real 
covenant  which  would  run  with  the  land  so  long  as  the  ownership  of 
the  mill  and  the  reversion  of  the  demised  premises  belonged  to  the 
same  person.  It  seems  to  be  difficult  to  reconcile  this  decision  with 
the  second  resolution  in  Spencer's  Case,  and  with  other  cases  in  which 
it  has  been  decided  that  a  covenant  of  a  lessee  to  build  a  house  upon 
the  land  of  the  lessor,  not  being  parcel  of  the  demise,  is  a  collateral 
covenant  not  binding  on  the  assignee.  The  distinction  may  be  be- 
tween covenants  of  this  sort  which  are  in  the  nature  of  rent,  and 
those  which  are  not.  But  however  this  may  be,  the  decision  does 
not  impugn,  but  confirms  the  doctrine  laid  down  in  all  the  cases,  that 
the  assignee  is  not  bound  by,  nor  is  he  entitled  to  the  benefit  of  a 
covenant,  unless  there  is  a  privity  of  estate  between  the  covenanting 
parties. 

Considering  this  principle  as  well  established  by  the  cases  cited, 
and  many  others  not  adverted  to,  we  are  of  opinion  that  this  action 
cannot  be  maintained,  as  there  was  no  privity  of  estate  between  the 
covenanting  parties.  Their  estates  were  several,  and  there  was  no 
grant  of  any  interest  in  the  real  estate  of  either  party,  to  which  the 
covenants  could  be  annexed.  The  stipulations  in  the  indenture  can- 
not be  construed  as  grants  and  covenants  at  the  same  time.  If 
they  were  grants,  then  an  action  of  covenant  is  not  the  proper  rem- 
edy for  the  violation  of  them;  and  if  covenants,  the  assignee  is  not 
bound,  for  want  of  privity  of  estate  between  the  parties. 


SECT.  II.]  HURD    V.    CURTIS.  851 

Nor  can  one  covenant  be  considered  as  a  grant,  and  the  other  as 
a  covenant,  for  the  stipulations  are  mutual,  and  if  one  is  to  be  con- 
strued as  a  grant,  the  other  should  be  construed  in  the  same  manner. 
If  the  stipulation  that  one  party  is  to  have  the  first  preference  of  the 
use  of  the  water  for  certain  mills  is  to  be  construed  as  a  grant,  the 
hke  stipulation,  that  the  other  party  shall  have  the  second  prefer- 
ence, cannot  consistently  be  construed  as  a  covenant.  And  we  ought 
not  to  give  a  strained  construction  to  the  indenture,  for  the  purpose 
of  extending  the  obhgation  of  the  contract  to  those  who  were  not 
parties  thereto.  All  the  stipulations  are  covenants  in  form,  were 
doubtless  considered  as  such  by  the  contracting  parties,  and  must  be 
so  construed.  As  such  they  are  mere  personal  covenants,  according 
to  all  the  authorities,  and  cannot  be  otherwise  construed,  without 
determining  that  all  covenants  concerning  lands  are  real  covenants, 
and  binding  on  the  assignee,  however  remote;  which  certainly  camiot 
be  maintained,  either  upon  authority  or  upon  principle.  Such  an 
extension  of  the  obhgation  of  covenants  might  be  productive  of  great 
mischief  and  confusion  of  rights  and  obligations  of  the  purchasers 
and  owners  of  real  estate. 

Declaration  adjudged  insufficient. 

Note.  —  In  the  following  cases  it  was  held  that  the  burden  of  a 
covenant,  made  by  an  owner  of  land  in  favor  of  the  owner  of  near- 
by land,  that  the  land  of  the  covenantor  should  be,  or  should  not  be, 
used  in  a  specified  mamier,  did  not  bind  the  assignee  of  the  covenan- 
tor at  law.  Sjohlom  v.  Mark,  103  Minn.  193  (no  liquors  to  be  sold) ; 
Harsha  v.  Reid,  45  N.  Y.  415,  418  (grist  mill  not  to  be  erected) ;  Law- 
rence V.  Whitney,  115  N.Y.  410,  416  (water  rights  incident  to  land  to 
be  used  in  a  specified  manner).  And  there  is  a  dictum,  accord,  in 
Hurxthal  v.  Boom  Co.,  53  W.Va.  87,  92. 

The  same  decision  has  been  made,  where  the  covenant  is  by  a 
grantor,  and  is  part  of  the  transaction  by  which  land  is  conveyed  to 
the  covenantee,  the  covenant  being  not  to  do  acts  on  land  retained. 
Brewer  v.  Marshall,  19  N.J.  Eq.  537  (not  to  sell  marl  from  the  land); 
Tardy  v.  Creasy,  81  Va.  553  (not  to  keep  a  hotel). 

Of  course,  if  the  covenant  does  not  touch  the  land,  the  question, 
whether  "privity  of  estate"  is  requisite  in  order  that  the  burden 
should  run,  is  not  reached.  See  Scholten  v.  Barber,  217  111.  148  (cove- 
nant to  pay  an  encumbrance  on  the  land);  Clement  v.  Willett,  105 
Minn.  267  (same);  Morse  v.  Garner,  1  Strob.  (S.C.)  514  (grantor  to 
have  free  transportation  over  a  railroad).  See  also  Wiggins  Ferry 
Co.  V.  Ohio  Ry.  Co.,  94  111.  83,  and  similar  cases,  cited  in  the  note  on 
pp.  846-47,  supra. 


852  KELLOGG    V.    ROBINSON,  [CHAP.  IV. 

KELLOGG  V.   ROBINSON. 

6  Vt.  276.     1834. 

This  was  an  action  of  covenant  broken,  and  in  the  county  court 
came  up  for  trial  upon  demurrer  to  the  declaration,  which  was,  in 
substance,  that  the  defendant,  by  deed  dated  October  12th,  1824, 
conveyed  to  the  plaintiff,  his  heirs  and  assigns,  a  certain  lot  of  land 
in  Bennington,  in  which  was  contained,  among  others,  a  covenant  in 
common  form,  against  incumbrances.  —  The  breach  is  assigned  as 
follows :  — 

"Yet  the  said  Susannah  did  not  keep  her  said  covenant,  but  has 
broken  the  same;  for  the  said  Henry  says,  that  at  the  time  of  the 
execution  of  said  deed,  the  said  land  was  not  free  from  all  incum- 
brances whatsoever.  And  the  said  Henry  further  says,  that  in  the 
deeds  of  said  premises  from  David  Robinson  to  Noah  Smith,  dated 
in  1783  and  1797,  is  contained  a  stipulation  that  the  said  Noah  is  to 
make  the  whole  of  the  fence,  and  to  maintain  the  fence  around  said 
premises,  or  that  part  of  said  fence  adjoining  said  Robinson's  land. 
And  the  said  Noah  Smith  and  his  assigns,  from  the  time  of  the  execu- 
tion of  said  deeds  by  the  said  David,  down  to  the  time  of  the  exe- 
cution of  the  deed  of  said  premises  by  the  said  Susannah  to  the  said 
Henry,  a  period  of  more  than  twenty  years,  were  accustomed  to,  and 
did  make  and  maintain  all  the  fence  around  said  premises,  whereby 
said  premises,  at  the  time  of  the  conveyance  of  the  same  by  the  said 
Susannah  to  the  said  Henry,  were  so  incumbered  that  the  said  Henry 
and  his  assigns  were  and  are  liable  to  make  or  maintain  all  the  fence 
around  said  premises,  or  that  part  which  adjoins  the  said  Da\'id 
Robinson's  lands,  which  is  about  40  rods;  and  said  premises  are  still 
charged  with  said  incumbrance.  And  the  said  Susaima"h  her  cove- 
nants aforesaid  has  not  kept,  but  has  broken  the  same.  —  To  the 
damage  of  the  plaintiff,  as  he  says,  the  sum  of  five  hundred  dollars," 
etc. 

To  this  declaration  the  defendant  pleaded  her  general  demun-er, 
and  also  assigned  the  following  special  causes  of  demurrer,  to  wit : 
''That  the  said  Henry  has  only  made  a  general  assignment  of  the 
breach  of  said  covenant,  neglecting  the  words  of  the  covenant,  and 
has  not,  in  his  said  declaration,  averred  any  facts  in  his  pretended 
special  assignment  of  the  breach  of  said  covenant  which  consti- 
tute an  incumbrance  on  said  premises.  —  And  this  she  is  ready  to 
verify.  Wherefore,"  etc. 

To  which  general  and  special  demurrer  the  plaintiff  joined. 

Judgment  of  the  court  was  for  the  plaintiff. 

Whereupon,  exception  was  taken  by  the  defendant,  which  was 
allowed  and  certified. 


SECT.  II.]  KELLOGG    V.    ROBINSON.  853 

Phelps,  J.  The  sufficiency  of  this  declaration  depends  upon  the 
inquiry,  whether  it  shows,  upon  its  face,  a  subsisting  legal  incum- 
brance upon  the  land  conveyed.  It  is  argued,  on  one  side,  that  the 
"stipulation,"  as  it  is  termed,  in  the  deed  from  Da\ad  Robinson  to 
Noah  Smith  is  in  the  nature  of  a  mere  personal  covenant  between 
the  parties  to  that  deed,  not  rumiing  with  the  land,  nor  binding  upon 
the  subsequent  grantees.  On  the  other  hand,  it  is  insisted,  that  the 
obligation  attends  the  inheritance,  and  is  of  course  an  incumbrance 
upon  the  land,  into  whatever  hands  it  may  pass. 

There  are  certain  covenants  concerning  the  realty  so  necessarily 
connected  with  it  as  to  pass  with  it  of  necessity,  and  operate  between 
other  parties  than  the  original  parties  to  the  covenant.  Of  this 
nature  is  the  covenant  of  warranty  in  the  deed  of  bargain  and  sale  -^ 
a  covenant  against  waste  —  a  covenant  to  repair  buildmgs  —  a 
covenant  not  to  cut  timber,  or  plough  up  meadow  land,  and  the  like. 
The  reason  why  these  covenants  run  with  the  land  is,  that  unless  they 
do  so,  they  cannot  be  effectual;  nor  can  the  party  for  whose  benefit 
they  are  created  derive  from  them  the  benefit  intended. 

There  is  another  class  of  covenants  of  a  doubtful  or  equivocal  char- 
acter, and  which  may  be  treated  either  as  merely  personal,  or  as 
annexed  to  and  running  with  the  land.  With  repect  to  these,  it  is 
doubtless  competent  for  the  contracting  parties  to  make  them  either 
the  one  or  the  other,  as  they  think  expedient.  When,  therefore,  the 
party  covenants  for  himself  and  his  assigns,  it  evinces  an  intent  to 
bind  the  land,  and  the  obligation  becomes  connected  with,  and  quali- 
fies his  estate.  Thus  it  is  said,  in  Spencer's  Case,  5  Coke's  Rep.  16, 
"if  lessee  covenants  for  himself  and  his  assigns,  to  build  a  new  wall 
upon  the  land,  Ihis  shall  bind  the  assignee,  because  named,  and  he  is 
to  take  the  benefit  thereof." 

The  latter  part  of  this  reason,  however,  has  reference  to  another 
class  of  cases,  where  the  thing  covenanted  for  has  no  necessary  con- 
nection with  the  land,  and  with  respect  to  which  no  tenant  could 
legally  bind  another.  Thus  it  is  said  by  Coke,  "But  although  the 
covenant  be  for  himself  and  his  assigns,  yet  it  is  otherwise,  if  the 
thing  to  be  done  be  merely  collateral  to  the  land  and  not  concerning  the 
thing  demised  in  any  sort,  as  a  covenant  to  build  a  house,  upon  the 
land  of  the  lessor,  not  parcel  of  the  demise." 

It  seems,  therefore,  that  with  respect  to  the  question,  whether  a 
given  covenant  runs  with  the  land  or  not,  the  nature  and  purpose  of 
the  covenant  is  the  first  criterion,  and,  where  this  is  not  decisive,  the 
intent  of  the  parties,  as  expressed  in  their  deed,  will  determine. 
"When,"  says  Lord  Coke,  "the  covenant  extends  to  a  tiling  in  esse 
parcel  of  the  demise,  the  thing  to  be  done  is  in  a  manner  ann(!xed  and 
appurtenant  to  the  thing  demised,  and  shall  run  with  the  land,  and 
shall  bind  the  assignee,  although  he  be  not  bound  by  express  words; 
—  as  if  the  lessee  covenant  to  repair  houses,"  etc.  But  if  the  thing 


854  KELLOGG    V.    ROBINSON.  [cHAP.  IV. 

be  collateral,  as  he  expressed  it,  and  not  concerning  the  land,  the 
assignee  is  not  bound  if  named. 

What,  then,  is  the  nature  of  the  "stipulation"  or  covenant  in  ques- 
tion? It  is  thus  set  forth  in  the  declaration:  "And  the  said  Henry- 
further  says,  that  in  the  deeds  of  said  premises  from  David  Robinson 
to  Noah  Smith,  dated  in  1783  and  1797,  is  contained  a  stipulation 
that  the  said  Noah  is  to  make  the  whole  of  the  fence,  and  to  maintain 
the  fence  around  said  premises,  or  that  part  of  said  fence  adjoining 
said  Robinson's  land." 

We  take  the  fence  described  to  be  the  partition  fence  between  the 
premises  conveyed  and  David  Robinson's  land ;  and  of  course  neces- 
sary to  be  maintained,  for  the  benefit  of  the  occupier.  The  stipula- 
tion contains  two  parts:  1st,  "To  hidld  the  fence."  Whether  the 
obligation  thus  far  would  be  considered  as  running  with  the  land,  is 
perhaps  somewhat  questionable.  In  Bally  v.  Wells,  3  Wils.  25,  it  is 
said,  that  "if  lessee  covenants  to  build  a  waU,  and  assigns  over  his 
estate,  the  grantee  of  the  reversion  shall  have  covenant  against  the 
assignee,  notwithstanding  the  covenant  wants  the  word  'assigns'; 
yet  every  assignee,  by  accepting  the  possession,  hath  made  himself 
subject  to  all  covenants  concerning  the  land,  but  not  to  collateral 
covenants.  So,  for  a  covenant  which  runs  with  the  land,  an  action 
lies  for  or  against  the  assignee,  although  not  named,  quia  terra  transit 
cum  onere."  Upon  the  authority  of  that  case,  the  obligation  would 
be  held  to  run  with  the  land.  But  it  is  not  necessaiy  to  decide  this 
point,  as  that  part  of  the  covenant  has  probably  been  long  since  at  an 
end. 

The  second  part  of  the  stipulation  is,  "  to  maintain  the  fence,"  etc. 
This  is  an  obhgation  in  yeryetuam.  That  it  concerns  the  land,  and  is 
not  "collateral,"  is  not  to  be  questioned.  It  is  equally  clear,  that 
Robinson,  the  covenantee,  could  not  have  the  full  benefit  of  it,  unless 
it  runs  with  the  land.  It  is  not  to  be  supposed,  that  the  parties  in- 
tended Smith  should  be  bound  after  parting  with  the  land,  nor  that 
the  obligation  to  maintain  the  fence  should  cease  with  a  transfer  of 
the  estate.  Besides,  where  is  the  distinction  between  a  covenant  to 
repair  houses  (the  case  put  by  Coke),  and  a  covenant  to  maintain 
the  fences?  Where  the  covenants  run  in  perpetuam,  there  can  be  no 
difference. 

It  is  argued,  that  the  fence  not  being  in  esse  at  the  date  of  the 
covenant,  the  latter  does  not  run  with  the  land.  The  decision  in 
Wilson  conflicts  with  this  argument.  At  the  same  time,  such  a 
covenant  certainly  concerns  the  land,  a  thing  in  esse.  The  mainten- 
ance of  fences  is  necessary  to  the  enjoyment  of  the  estate.  And  the 
objection  is  no  better  founded  than  a  similar  objection  to  a  covenant 
to  repair  houses  would  be,  upon  the  ground  that  the  particular 
separations  were  not  in  esse  at  the  date  of  the  covenant. 

If  we  consider  the  fence  itself  as  the  principal  thing,  yet  the  argu- 


SECT.  II.]  -SEXAUER    V.    WILSON.  855 

merit  has  no  better  foundation.  The  first  part  of  this  stipulation  is 
satisfied  by  building  the  fence :  then  comes  the  latter  part,  to  inain' 
tain  it;  which,  when  it  becomes  operative,  concerns  a  thing  in  esse. 
It  has  reference  to  a  thing  contemplated  as  existing,  and  which  must 
actually  exist  when  the  covenant  takes  effect.  If  we  regard  the  stip- 
ulation in  the  light  of  a  condition  of  the  grant,  and  in  a  deed  poll,  it 
could  hardly  be  otherwise  —  all  difficulty  vanishes.  If  it  be  a  condi- 
tion, instead  of  a  covenant,  whoever  takes  the  estate,  takes  it  cum 
onere.  We  are  of  opinion  upon  the  question,  that  a  covenant  in  a 
conveyance,  to  build  and  maintain  the  fences,  runs  with  the  land. 

Note.  —  See,  accord,  Hazlett  v.  Sinclair,  76  Ind.  488;  Kentucky 
R.R.  Co.  V.  Kenneij,  82  Ky.  154;  Bronson  v.  Coffin,  108  Mass.  175; 
Huston  v.  Cincinnati  R.R.  Co.,  21  Ohio  St.  235.  But  cf.  Railway  v. 
Bosw&rth,  46  Ohio  St.  81. 

There  is  some  authority  that  the  burden  of  covenants,  other  than 
covenants  of  fencing,  ran  with  the  land  at  law  (provided  such  cove- 
nants concern  the  land),  even  if  there  is  no  "privity  of  estate" 
within  the  doctrine  of  Morse  v.  Aldrich,  supra,  and  Roche  v.  Ulhnan, 
supra.  See  Howard  Co.  v.  Water  Lot  Co.,  53  Ga.  689  (grantee  cove- 
nants to  pay  a  portion  of  the  expense  of  maintaining  a  dam  on  other 
land) ;  Atlanta  Ry.  Co.  v.  McKinney,  124  Ga.  929  (grantee  of  a  water 
right  covenants  to  convey  part  of  the  water  to  land  owned  by  the 
grantor);  Peden  v.  Chicago  Ry.  Co.,  73  Iowa  328  (dictum  that  if  a 
grantee  of  land  covenants  to  make  a  certain  disposition  of  the  water 
on  his  land,  the  burden  runs). 

In  Dorsey  v.  St.  Louis  R.R.  Co.,  58  111.  65,  A  granted  to  a  railroad 
company,  and  tlie  company  covenanted  to  erect  and  maintain  fences, 
crossings,  and  a  depot.  The  company  was  not  then  authorized  to 
transfer  its  property.  Later,  by  authority  of  the  legislature,  it  trans- 
ferred its  property  to  the  defendant,  and  the  defendant  was  held 
bound  by  the  covenant.  The  ground  of  the  decision  was  that  the 
legislature  must  have  intended  that  the  assignee  should  be  charged 
with  such  obligations  of  the  assignor. 


SEXAUER  V.  WILSON. 

136  Iowa  357.     1907. 

Plaintiff  conveyed  to  John  Wilson  ten  acres  of  land  out  of  a  half 
section  then  owned  by  him,  and  in  the  deed  inserted  this  clause: 
"The  grantee  herein  further  agrees  to  perpetually  maintain  a  tight 
fence  sufficient  to  stop  hogs  and  all  other  live  stock  between  said  land 
described  above  and  all  property  of  the  grantor  herein  adjacent 
thereto."  No  line  fence  then  existed,  but  Wilson  erected  partition 
fences,  as  agreed,  soon  thereafter,  and  maintained  them  during  his 


856  SEXAUER    V.    WILSON.  [CHAP.  IV. 

occupancy  of  the  premises,  from  1889  until  1904,  when  he  conveyed 
the  land  to  defendant  Krausa.  The  latter  immediately  took  posses- 
sion, but  failed  to  keep  the  fences  in  repair.  Finally,  plaintiff  re- 
paired them  at  an  expense  of  $18,  for  which  he  seeks  recoverJ^  Upon 
proof  of  the  foregoing  facts,  the  court  directed  a  verdict  for  defend- 
ants. From  judgment  entered  thereon,  the  cause  being  properly 
certified,  plaintiff  appeals.  Affirmed  as  to  Wilson.  Reversed  as  to 
Krausa. 

Ladd,  J.  Having  found  that  the  covenantor's  grantee  is  bound  by 
the  covenant,  the  next  inquiry  is  whether  the  covenantor  also  is 
liable  thereon  subsequent  to  parting  with  the  title.  This  necessarily 
depends  on  the  intention  of  the  parties  to  the  first  deed.  While  the 
covenant  is  personal  in  form,  this  is  not  controlling,  for  the  deed 
must  have  been  executed  with  the  understanding  that  (1)  Wilson, 
the  grantee,  would  have  no  right  to  enter  on  the  land  after  passing 
title  to  another  in  order  to  repair  or  replace  the  fence;  (2)  that  he 
would  enjoy  no  benefit  therefrom;  and  (3),  owing  to  the  nature  of 
the  covenant,  neither  he  nor  his  representatives  could  perform  by 
maintaining  the  fence  pei-petually.  Of  necessity  the  grantor  must 
have  relied  on  the  land  with  which  the  covenant  runs  to  secure  its 
performance,  and,  fairly  construed,  Wilson's  obhgation  was  to  make 
the  fence  and  maintain  it  only  during  the  time  he  owTied  the  land. 
It  could  not  have  been  his  intention  to  assume  an  obligation  in 
perpetuum,  and,  in  event  of  disposing  of  the  fee,  to  remain  bound  for 
life.  On  the  other  hand,  the  grantor  naturally  had  in  mind  recourse 
on  those  who  should  own  the  land  when  the  fence  should  need  repair, 
rather  than  this  grantee,  who  might  be  gone  before  this  would  be 
required.  This  conclusion  seems  reasonable,  and  has  the  support  of 
Hickey  v.  Railway,  51  Ohio  St.  40  (36  N.  E.  672,  23  L.  R.  A.  396,  46 
Am.  St.  Rep.  545).  It  follows  that  the  district  court  rightly  dis- 
missed the  petition  as  to  Wilson. 

Note.  —  On  the  liability  of  the  covenantor,  after  parting  with  the 
land,  see  also  Standish  v.  Lawrence,  111  Mass.  Ill;  Clark  v.  Devoe, 
124  N.Y.  120. 


Abe  mitersiiie  pvt^f 

CAMBRIDGE  .  MASSACHUSETTS 
U    .   S    .  A 


SCHOOL  CF  LAW  LIDRARY 
UMVERSITY  CF  CALIFORNIAJ 


/    ATy-lTTIT 


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